|One Kat, two cases|
Case R 0016/13
R 0016/13 is a rare example of a successful review case -- it's apparently only the 5th successful review ever. It is not new (it came out in December 2014), but what is new is the excellent and detailed report of the decision in English (the original decision is in German) in the latest EPI Information (you can download it at the link here; the article starts on page 100) by Dr Eva Ehlich, a patent attorney at Maiwald.
|I WILL be heard!|
Case R 0002/15
|Showing no personal interest ...|
Noteworthy in this case is that the original Chairman objected to agreed to his own recusal, stating:
"Although (1) I have no personal interest in the outcome of the case and (2) actually played no role, at least not voluntarily, in the factual events that gave rise to the decision under review, it is a matter of fact that I was, during the proceedings before the Board of Appeal [...], personally addressed by the petitioner on the subject-matter of the suspected partiality of the chairman of the Board of Appeal. Given that these particular circumstances could give an impression that I have been involved in the case, which could cast doubt on my ability to deal with the case in an impartial way, I inform the Enlarged Board, in accordance with Article 24(2) EPC, that I should not take part in the petition for review proceedings."From the reasons for the decision, it is clear that the petitioner had, during the underlying proceedings in T 1938/09, written to the Chairman of the Enlarged Board to ask whether Ulrich Oswald had ever deputised for him in his capacity as Vice President of DG3 of the EPO; if so, it was considered that the reasoning of R19/12 would apply equally to any deputy, so that Ulrich Oswald should be recused in the T 1938/09 appeal case. The Chairman of the Enlarged Board had not provided an answer to that question.
The Enlarged Board considered that the circumstances justified the withdrawal of the original Chairman, so that it was ordered that the petition for review should proceed with the Enlarged Board in its amended composition with Rainer Moufang as Chairman. The outcome of that review is awaited.
In one aspect, this decision is just one procedural step in a much longer dispute. In another aspect, it is a welcome confirmation by the Enlarged Board that the independence of members of the Boards and Enlarged Board of Appeal must be seen to be beyond doubt in any case.