G 1a/21 - Objection regarding partiality

Key points

• An objection under Article 24(3) EPC against the Chairman and two members (X and Y) of the Enlarged Board for reasons of suspected partiality was raised by the appellant/opponent in this case (letter 27.04.2021, here). The Enlarged Board decides that the Chair is replaced. The rapporteur himself also informed the Enlarged Board of concerns under Art.24(2) EPC and the Enlarged Board decides that he is replaced as well. Members X and Y are not replaced. However, they did not participate in the panel issuing the present decision, so in the present decision, four out seven members were replaced (the Enlarged Board in original composition found the objections admissible, subsequently the Chairman of the Enlarged Board recomposed the panel to deal with the partiality objection). The present decision was taken 17.05.2021.
• The present decision gives me confidence in the proceedings and will likely contribute to the procedural legitimacy of the substantive decision to be taken in G1/21.
• I expect that the video conference oral proceedings scheduled for 28.05.2021 will be opened but will possibly continue as vico only with the consent of the parties (which I believe is not on file yet) and will be adjourned for proceedings on the EPO premises (in person) if one of the parties does not consent to vico oral proceedings so as to not prejudice the decision. The oral proceedings ‘on premises’ can then take place in early August under Rule 115 EPC but perhaps the parties agree with an earlier date. 
  
  
• The opponent/appellant submitted that vico oral proceedings are not a priori unacceptable but lack legal basis in the EPC. I tend to agree that mandatory vico oral proceedings are acceptable as an emergency measure during the Covid-19 pandemic and associated travel restrictions under Article 125 EPC. I also think that the Administrative Council is competent to adopt rules about the organization of oral proceedings in Rule 115 and Rule 116 EPC (alternatively in the RPBA under G6/95, r.1 para.2, i.e. new Art.15a RPBA). In other words in my view an amendment of Article 116 is required. I don't expect that a new provision regulating mandatory vico proceedings will be found invalid under Article 164(2) EPC under a dynamic interpretation of Article 116 duly taking into account the AC's decision in particular if taken with large majority of the votes, as in G3/19 (and possibly having regard to the Implementing Regulations adopted at the Munich Conference 1973 including in Part VII a Chapter II ‘Oral Proceedings and taking of evidence’; p.72 of the PDF further in view of G6/95 r.1). 
• Moreover, in my view switching to vico oral proceedings without travel to Munich and The Hague may very well be justified as legislative choice as contributing to a green economy and to diversity and inclusion of the profession and the patent system and access to justice, in terms of geographic distribution over the EPC Contracting States but also in terms of combining the patent attorney job with the often still genderized demands of family life. Due regard is to be given to the practical availability of high-quality vico systems. The Division/Board may still be required to sit and deliberate in person on the EPO premises so as to ensure the collegiate decision making enshrined in the EPC. Further on motivated request of a party in-person oral proceedings should be available when justified by the specific circumstance of the case. Merely offering voluntary vico proceedings may not suffice for the indicated goals in opposition (appeal) proceedings, because if the other party can unexpectedly show up on the EPO premises to attend the oral proceedings, a party may feel reluctant to choose for vico, such that simply voluntary vico's in opposition may not effectively contribute to those goals. 
• Alternatively, the EPO could introduce in opposition (appeal) proceedings the possibility for parties to give binding (i.e. irreversible) consent to vico oral proceedings on the condition that the opposing party does the same. I think a simple Decision could suffice as the legal basis for first instance opposition proceedings. 
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On the partiality

• The Enlarged Board: “The fact that a judge has expressed an opinion on a legal issue that is to be decided upon in a case is not in itself and not always a ground for suspicion of partiality (see also G 3/08 and G 2/08).”
• The Enlarged Board: “the Chairman was involved in all stages of the preparation of the legislation, which is at least indirectly under review in G 1/21. His involvement was direct and decisive, as follows from the above mentioned facts. He initiated the proposal, presented it for adoption and approval by the competent organs, he steered the practice of the Boards of Appeal in this direction and communicated this practice to the public. The reasoning of the ECHR that a direct involvement in the passage of legislation is likely to be sufficient to cast doubt on partiality [in case 28488/95 regarding the (Deputy) Bailiff of Guernsey], therefore seems to apply a fortiori to the present case”
  
  
• As to member Z of the Enlarged Board: “A further member of the panel dealing with G 1/21 (Z) informed the Enlarged Board that he was also involved in the preparation of Article 15a RPBA and that his involvement could be qualified as relating to circumstances underlying the objections made by the appellant.”
• The Enlarged Board decides that Mr. Z is also replaced because he was actively involved in the preparation of the proposal. 

• The composition of the Enlarged Board as per the Communication of 17.03.2021: Josefsson (chair), Beckedorf, van der Eijk, Arnold (external), Chatzikos (external), Eliasson, Ritzka. 
• The panel taking the present decision: Blumer (chair), van der Eijk, Bokor, Arnold, Chatzikos, Gryczka, Pricolo. 

G 1/21 G 0001/21 G1/21 EPO

ECLI:EP:BA:2021:G000121.20210517

https://www.epo.org/law-practice/case-law-appeals/recent/g210001eu1.html

A. FACTS AND SUBMISSIONS

1. At the end of the oral proceedings of 8 February 2021 in case T 1807/15 before the Board of Appeal 3.5.02 (the Board), the Board's Chairman informed the parties that the Board would refer a question under Article 112 EPC to the Enlarged Board of Appeal.

With its interlocutory written decision of 12 March 2021 the Board referred the following question:

Is the conduct of oral proceedings in the form of a videoconference compatible with the right to oral proceedings as enshrined in Article 116(1) EPC if not all of the parties to the proceedings have given their consent to the conduct of oral proceedings in the form of a videoconference?

2. By Order of 17 March 2021 the Chairman of the Enlarged Board of Appeal (Enlarged Board) determined the composition of the panel to decide on the referral. On 17 March 2021 the parties to the appeal proceedings in case T 1807/15 and the President of the European Patent Office (EPO) were invited to file submissions on the referred question by 27 April 2021. By a communication of 24 March 2021 the public was invited to file written statements on the referred question within the same timeframe.

3. More than 40 amicus curiae briefs were filed, the President of the EPO provided his comments and also the appellant-opponent (further: appellant) filed a submission. In this submission, dated 27 April 2021, the appellant raised an objection under Article 24(3) EPC against the Chairman and two members (X and Y) of the Enlarged Board for reason of suspected partiality. The objection was based on the involvement of the Chairman in the preparation and enactment of Article 15a of the Rules of Procedure of the Boards of Appeal (RPBA), which entered into force on 1 April 2021. For the members X and Y the objection was based on their membership of the Presidium of the Boards of Appeal.

source http://justpatentlaw.blogspot.com/2021/05/g-1a21-objection-regarding-partiality.html