EPO, Enlarged Board of Appeal, interlocutory decision of 25 April 2014 in case R 19/12 – Suspicion of partiality objection allowed
** Now including the petition for review, provided by Wallinger **
** Now including the English translation, provided by Wallinger **
In the words of Sir Robin Jacob in ex parte Lenzing the members of the Boards of Appeal are “judges in all but name”. Nevertheless, the lack of separation of the Boards of Appeal from the European Patent Office has been the reason for discussion and concern for many years (cf. Teschemacher in Festschrift 50 Jahre Bundespatentgericht, p. 911).
This applies in particular to the Vice-President of Directorate General 3 – Boards of Appeal (VP DG3) who appears on the EPO’s website as a member of the Management Committee. Whereas other members of the Boards of Appeal leave their previous functions as examiners or lawyers in the administration of the EPO when they are appointed as members of the Boards of Appeal, the same does not apply in the same strict way to the Vice-President DG3 who assists, in accordance with Article 11(3) EPC, the President.
A petitioner in a review case took this double function as ground for an objection to suspicion of partiality. In a composition without the member objected to, the Enlarged Board of Appeal (EBA) allowed the objection and replaced the Chairman.
The EBA notes that the VP DG3 remains after his appointment as Chairman of the EBA part of the hierarchical structure of the EPO and is subject to the instructions of the President. Whereas the VP GD3 is not subject to instructions in his role as Chairman of the EBA, there is no precise separation between his different functions.
In respect of review cases, the EBA notes that a conflict may arise between his obligation to follow instructions regarding the efficiency goals to be reached and his obligation to contribute to the development of the case law making review proceedings an effective tool for protecting the rights of the parties to the proceedings. Such conflict may be quite concrete if the right to be heard is at stake: the stricter the requirements for a successful review are, the more are the Boards in a position to streamline proceedings without having to face the possibility to have their decision set aside in later review proceedings.
The EBA adds that this conflict is not a consequence of the provisions of the Convention. The EPC stipulates neither that the VP DG3 is at the same time Chairman of the Enlarged Board of Appeal nor that VP DG3 is a member of the Management Committee or of other bodies with administrative functions. The membership in these bodies is not restricted to serve the interests of the Boards of Appeal as a judicial self-governance.
The EBA refers to the Draft Basic Proposal for a Revision of the EPC implementing the organisational independence of the Boards of Appeal within the European Patent Organisation which the Administrative Council discussed in 2004 and considered to be a basis for a Diplomatic Conference which draft aimed at separating the Boards of Appeal from the EPO but has not resulted in any further follow up action, neither from the Administrative Council nor from the Office.
The EBA concludes that, if the present structural weaknesses caused by the integration of the Boards into the Office have to be accepted de lege lata, it is all the more necessary to separate the head of DG3 from the management of the Office in order to avoid the possible impression that the judiciary is realizing the interests and aims of the Office.
Whereas the decision, taken in a three member composition, affects only a single review case, its effects may be far-reaching. Corresponding requests may be made in other review cases and even in cases in which points of law have been referred to the EBA. The structural problems raised may also be raised in pending national proceedings against final decisions of the EPO as cited in the decision.
Finally, it has to be noted that the question of the independence of the Boards of Appeal has been the first plea in the actions of Spain against the Regulations on the unitary patent (C-146/13 and C-147/13). The unitary patent will be a EU title and is difficult to imagine that it can be revoked in opposition proceedings which are not subject to appeal to be decided by a body the qualification of which as an independent tribunal within the meaning of Article 47 of the EU Charter of Fundamental Rights is beyond any doubt, a question which has already been touched by the attorney general in G 1/09.
Read interlocutory decision R 19/12 here.
Read the English translation of the decsion R 19 / 12 here.
Read the petition for review (in German) here.
Reported by Rudolf Teschemacher