The Enlarged Board of Appeal (EBA) has decided to reschedule oral proceedings for G1/21 due to a procedural technicality. The referral concerns the legality of conducting Board of Appeal oral proceedings by Video Conferencing (ViCo) without the consent of all parties. However, the substantive issues in the referral were not considered today. Instead, the EBA accepted a request from the Opponent for postponement of proceedings. The Opponent particularly objected that they had not been given sufficient time to consider the President's submissions on the referral, given that they had only received formal notification of these submissions a few days before the hearing.
G1/21: Case catch-up
The new rule of procedure of the Boards of Appeal (RPBA), Article 15a, was introduced earlier this year. Article 15a RPBA permits a Board of Appeal to hold oral proceedings by ViCo whenever "the Board considers it appropriate to do so". The rapid introduction of this new provision sparked considerable controversy, given that it permits Boards of Appeal to hold oral proceedings by ViCo even when one or more of the parties disagree. Whilst most commentators have accepted the necessity of ViCo proceedings during the COVID-19 pandemic, concerns were raised that access to justice before the EPO requires a party to have the right to put their case in-person.
The referral in G1/21 asks whether Article 15a RPBA is compatible with the right to oral proceedings as enshrined in Article 116(1) EPC. The referral itself stems from appeal of the opposition decision to maintain EP1609239 in amended form (T1807/15) (IPKat). |
| IPKat desk of G1/21 news |
Partiality of the EBA members
Given the involvement of some of the members of the EBA panel appointed to decide on the referral in the adoption of Article 15a RPBA, the composition of the panel unsurprisingly proved controversial. Numerous amicus curiae were filed requesting that the potentially conflicted members be replaced (IPKat). In response to similar objections from the Opponent, the EBA last week issued an interlocutory decision changing the composition of the EBA panel. The decision replaced Board Chairman, Mr Carl Josefsson, and the Rapporteur, I. Beckedorf (the Rapporteur's job is to, inter alia, draft the EBA decision (Article 5 RPBA)). Two other members of the panel against which objections had been raised by the Opponent were not found to be at risk of objective partiality (IPKat).
The Opponent was not satisfied by the changes to the EBA panel and further submissions on this issue were made shortly before the hearing. The Opponent noted their concern that the EBA panel members who were found at risk of objective partiality had not informed the EBA about their circumstances earlier in proceedings. The Opponent also submitted a further 11 requests in response to the interlocutory decision. These included a request for postponement of the scheduled oral proceedings, for the submissions of the replaced EBA panel members to be disclosed, and for the public to be invited to file further amicus curiae concerning the composition of the panel.
Non-public discussions at the 28 May 2021 hearing
The oral proceedings in G1/21 were today held (rather ironically) by Zoom and could be watched by anyone online as a livestream. The ability of anyone to watch today's hearing from anywhere in the world, from the comfort of their own work desk, is perhaps an argument in and of itself for the continuation of ViCo oral proceedings.
However, the entire morning of today's proceedings was held behind (virtual) closed doors, as the EBA considered the objections regarding perceived partiality of the newly appointed members of the panel. According to Boards of Appeal case law, the public may be excluded from proceedings relating to objections to members of the Boards under Article 24(3) EPC (Case Law of the Boards of Appeal, III-C-7.2, T 0190/03).
The public hearing recommenced after lunch with the announcement by the EBA that all of the new objections and requests raised by the Opponent on the composition of the EBA panel had been refused (except for the request to consider the requests at today's oral proceedings).
Speed versus diligence
However, even once the partiality objections had been dealt with, it was still not yet time to discuss the substantial legal aspects surrounding ViCo oral proceedings. The EBA next went on to deal with a further procedural objection raised by the Opponent. The Opponent submitted that they had been formally notified of the EPO President's comments on the referral only 2 days before the hearing. Such a short period of time, the Opponent's representative submitted, was not enough for them to discuss the submissions with their client (especially given that their client had been on holiday), or to respond to the submissions as provided for by Article 9 Rules of Procedure of the Enlarged Board of Appeal (RPEBA).
As the EBA noted, the Opponent had probably been aware of the President's comments before they received the formal notification from the EPO. The President's comments had been published on the EPO website for all to see on 28 April 2021 (and had been widely reported and discussed). None-the-less, the Opponent submitted that they could not be expected to continuously monitor for submissions published somewhere on the EPO website. In reality, the question was probably more of a matter of legal principle than of an actual loss of the right to be heard, given that it seems highly unlikely that the Opponent did not read and review the President's comments when they were published online in April.
The EBA was clearly concerned that a decision on the legality of mandatory ViCo proceedings should not be unnecessarily delayed, given the potentially large number of affected cases. The Opponent was therefore asked how long they would require to consider the President's submissions. The Opponent responded that they would like at least 1 month. The EBA accepted this request, and oral proceedings will be rescheduled for June-July in order to allow the Opponent to make further written submissions.
It thus seems that, in the Enlarged Board's admirable attempt to provide legal certainty on ViCo proceedings as soon as possible, certain procedural rules have been overlooked. We will therefore have to wait a little longer to hear the arguments on the substantive issues of the referral. However, on the plus side, at least the parties will not have to travel all the way back to Munich to attend the rescheduled hearing...
Further reading
18 January 2021: The inexorable rise of EPO oral proceedings by video conference
9 Feb 2021: The legality of Board of Appeal oral proceedings by video conference has been referred to the EBA
16 March 2021: Board of Appeal in T1807/15 continues with ViCo oral proceedings referral
29 March 2021: Chairman and Enlarged Board criticised for lack of impartiality in ViCo oral proceedings referral (G1/21)
21 May 2021: EPO responds to accusations of perceived bias in G1/21 (ViCo oral proceedings)
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Given how compelling (in my opinion) the Opponent's above mentioned further submissions alleging continued lack of impartiality of the amended panel were, and the refusal this morning of all the Opponent's requests with regard to that (after non-public part of the hearing), my own personal opinion after many year's association with the EPO is that today marks a sad loss of the days when impartiality could be expected.
ReplyDeleteIn my mind, it also marks the end of the days where rules had to be obeyed (at least for the EBoA). The EBoA discussed and refused request 1 (postponement of the Oral Proceedings) in non-public consultations only with the Appellant when there was no justification to exclude the public on this point, and granted request 2 (Oral Proceedings to discuss Art. 24 EPC) without obeying Rule 115 EPC. And what about the approach that serving documents to parties and clause 2 of Art. 9 RPEBOA are not so important? Only in the last moment the EBoA "gracefully" granted (less than) one month for the Appellant to submit his observations. Surely, Art. 10 RPEBOA provides that third parties' observations (and amicus curiae submissions) "may be dealt with as the Board thinks fit". This Board obviously thinks it fit to put them on an USB stick and then directly throw them in the bin. Which patent attorney right in his mind would put in his or her computer an USB stick that had been sent to him by mail? I hope none.
ReplyDeleteTalking about an USB stick: when the EBA was called in to confirm the sacking of one of its members, the then president gave the EBA a stick with all alleged proof of the misbehaving of the accused member and told the EBA it should take knowledge of its content. At the time the EBA refused to look at it.
ReplyDeleteNow it is the BA which gives an USB stick to a party and tells it to take knowledge of its content. It is amazing to see how the EBA has evolved! Do not tell me that the EBA is really independent.
OP by video before the EBA do not give the guarantee that the representatives of the president cannot participate in the debate within the EBA. It might be far-fetched, but in view of the manner G 1/21 has been dealt with by the EBA up to now, I would not be surprised. It is clear that the speed with which the chair of the BA called OP was to please the president. Without OP by ViCo no “New Normal”!
That on top the EBA is not even aware of its own RP is as such a scandal. That the chair of the BA had to be told by its peers that he should not act in G 1/21 also a scandal. I do not think that its credibility has increased.
Should all the present “managers” of the EPO and of the BA had been at the helm of the EPO at its beginning, the EPO would never have become a success story!
What is the opponent's point in slowing down the process by this procedural trick? I mean, everybody on this planet interested in the outcome of this case knew about the PEPO's (very foreseeable) comments. If the opponent's representatives take the risk of being seen as bloody amateurs, there must be some reason. Perhaps one of the readers can enlighten me?
ReplyDeleteMy guess is because they want more time to come up with a proper response to the partiality issues, which have genuinely been rushed through at the last moment.
DeleteHow would you react if you were summoned to Oral Proceedings with just 2 months' time left? Especially given the fundamental nature of the decision here, there should absolutely be sufficient time for all parties to prepare the case. This was true even before the two most crucial members of the EBoA have been exchanged mere days before the Oral Proceedings, and it is certainly true now. Compare this to a "normal" EBoA case in which the EPO has no "causa sua" interest and check how much time there usually is to prepare legal opinions and so on.
DeleteThe letter of the opponent detailing its objections on suspected partiality is very interesting, cf.
ReplyDeletehttps://register.epo.org/application?number=EP04758381&lng=en&tab=doclist (Letter of 24.05.2021)
For me the opponent convincingly shows that a decision untainted by suspicions of partiality is impossible for this case. The reasons are multiple, but I would say that the fundamental one is the lack of independence of the (E)BoA.
The situation has been clearly rendered worse by the actions of the current President of the Boards, a position created with the latest reform. Thus it seems that this reform under the pretense of increasing the (perception of) independence of the Boards has in fact aggravated the issue.
Well, I think there are 2 aspects worth considering with respect to the opponents partiality issues:
Delete1) Two more members are suspected of also having worked in some form on the new ViCo rules, but the Board only said they are "not aware" of this. Avoiding to simply confirming that no, these members have not done that, is indeed not really the level of transparency one would hope for.
2) Saying that every member intrinsically always has an implicit personal interest in the outcome is a rather far-reaching argument. It implies that the EBoA simply cannot decide this case, regardless of composition or structure. So who should then do it? The ICJ? The UN? A diplomatic conference?
Realistically, the external members should be in a majority so that they can outvote the career-minded EPO employees.
ReplyDeleteWhat is at stake in G 1/21 is no more than an EPO 2.0 which is not covered by the EPC as it stands!
ReplyDeleteIt is not merely whether you can sit comfortably in your UK office when there is an OP, but it is about a total reshaping of the EPO.
@ Anonymous of Saturday, 29 May 2021 at 11:20:00 BST
If there are amateurs at work, I would rather see them on the side of the EBA and of the president’s representatives.
Having to be told by a party to look at the RPEBA cannot be seen as glorious. Where have you ever seen a court not aware of its own rules of procedure?
@ Anonymous of Saturday, 29 May 2021 at 17:33:00 BST
Saying that “every member intrinsically always has an implicit personal interest in the outcome is a rather far-reaching argument” is correct.
But it touches on one aspect which has not been really discussed up to know: thanks to Art 15a(3) RPBA in combination with Art 15a(1) RPBA every member of the BA and hence every member of examining and opposition divisions will be allowed to sit wherever he likes. This is paving the way for the “New Normal”.
Without mandatory OP by ViCo there is no “New Normal”. This should not be forgotten.
The EBA declared in G 2/19 that “Users of the European Patent Organisation's services can legitimately expect that the European Patent Office's departments will not perform acts at whatever other place they choose”.
How is this statement compatible with Art 15a(3) RPBA20 and the “New Normal”?
One the other hand the opponent just wanted to draw the attention of the EBA in which impossible situation it has put itself with confusing speed and precipitation. That it is why the EBA had no choice but to declare the request on partiality not admissible. I am curious to see what reasons will be given for this legal pirouette.
To quote from the Guide on Article 6 of the ECHR (civil limb):
Delete"225. In determining whether a body can be considered to be “independent”, the Court has had regard, inter alia, to the following criteria (Langborger v. Sweden, § 32; Kleyn and Others v. the Netherlands [GC], § 190):
i. the manner of appointment of its members and
ii. the duration of their term of office;
iii. the existence of guarantees against outside pressures; and
iv. whether the body presents an appearance of independence.
...
228. The Court has not specified any particular term of office for the members of a decision-making body, although their irremovability during their term of office must in general be considered as a corollary of their independence. However, the absence of a formal recognition of this irremovability in the law does not in itself imply lack of independence provided that it is recognised in fact and that other necessary guarantees are present (Sacilor Lormines v. France, § 67; Luka v. Romania, § 44).
229. Judicial independence demands that individual judges be free from undue influence outside the judiciary, and from within. Internal judicial independence requires that they be free from directives or pressures from fellow judges or those who have administrative responsibilities in the court such as the president of the court or the president of a division in the court. The absence of sufficient safeguards securing the independence of judges within the judiciary and, in particular, vis-à-vis their judicial superiors, may lead the Court to conclude that an applicant’s doubts as to the independence and impartiality of a court can be said to have been objectively justified (Agrokompleks v. Ukraine, § 137; Parlov-Tkalčić v. Croatia, § 86)".
With regard to the Boards of Appeal of the EPO, there are now objectively justifiable doubts regarding compliance with ALL of criteria i to iv above. How has this been allowed to happen?
For instance the German Federal Constitutional Court has in a decision of March 2020 that it is possible to appoint judges for a specific length of time under two conditions:
Delete1) they have to have a life time position as civil servants
2) they cannot be reappointed.
I am curious to see whether these two conditions will play a role when the GFCC will decide upon the independence of the BA.
The whole way G 1/21 has been managed by the chair of the EBA shows amply that the BA are anything but independent.
On top of it, the chair of the BA only has the powers delegated to him by the president of the EPO. There is not even the perception of the independence!
Dear Kant,
ReplyDeleteBy giving the majority in the EBA to external members, some people, names need not be given, would loose control of the EBA/BA as the external members most probably do not care about not being re-appointed.
But the (perception of the) independence of the BA has improved since 2016!
Who do you think you are to ask such a nasty question and to raise doubts about the impartiality of members of the BA?
The whole mess the BA/EBA finds itself in, is the direct result of the reform of the BA wanted by a former head of the EPO.
It is a scandal that members of the BA can only be reappointed if they have shown a given "performance". The criteria are still non-public.This is also scandalous!
Without leaning to far out of the window, performance means probably a certain flexibility of the spine associated with a production increasing every year like in DG1.
The EPO has indeed been degraded to a producer of "targets",.
When one sees the number of patents revoked or severely limited in opposition because the grant procedure is flawed, it becomes alarming. Just look at the published decisions and draw your conclusions. As only 5% of patents are opposed, when you extrapolate to all the grants it is daunting!
@The fall of the EBA:
ReplyDeleteI fear that the number of applications having been incorrectly refused is higher than the numeber of patents which should not have been granted. In view of the costs and the delay involved, most applicants refrain from an appeal in ex part cases in contrast to opposition proceedings where almost always an appeal is filed.
@ Anonymous, Monday, 31 May 2021 at 08:49:00 BST
ReplyDeleteIt is not the feeling I have.
I know of examiners who have barely ever refused an application, be it for a decision on the status of the file, which when applied properly allow a quick refusal as a form has to be completed.
For quite a while examiners were granted more production points when they refused applications(1,35)as for a grant (1). The reason for this was because the management of the EPO found the number of refusals inordinately low.
The problem of delays in appeal procedures was artificially created by the former president of the EPO refused to propose to the AC to appoint new members of the BA.
That he was harming the users was the lest of his worries, he just wanted to show who is the boss. Sad but true!
To quote from the Burgh House principles (https://www.ucl.ac.uk/international-courts/sites/international-courts/files/burgh_final_21204.pdf):
ReplyDelete"9.2 Judges shall not serve in a case with the subject-matter of which they have had any other form of association that may affect or may reasonably appear to affect their independence or impartiality".
We can conclude that the President of the BoA must have overlooked this principle when (originally) deciding to serve in case G 1/21. Frankly, it is hard to see how even the appearance of impartiality can now be restored in view of the fact that the EBA has not (completely) rescinded the decisions taken by the President of the BoA in G 1/21.
This principle is also relevant to the involvement of X and Y as representatives of the Boards in public discussions relating to (proposed) Art 15a RPBA. This is because it calls into question whether that involvement represents a "form of association that may affect or may reasonably appear to affect their independence or impartiality". The EBA's decision to hide behind the absence of public documents that conclusively demonstrate X and Y's involvement is therefore extremely disappointing, as is its apparent reluctance to make public the statements made by X and Y. This is particularly so in view of the following Burgh House principles:
"14.1 Judges shall disclose to the court and, as appropriate, to the parties to the proceedings any circumstances which come to their notice at any time by virtue of which any of Principles 7 to 13 apply.
14.2 Each court shall establish appropriate procedures to enable judges to disclose to the court and, as appropriate, to the parties to the proceedings matters that may affect or may reasonably appear to affect their independence or impartiality in relation to any particular case".
I can only hope that, when it is published, the EBA's decision on the opponent's further partiality objections explains why X and Y's "hidden" involvement in public discussions on Art 15a RPBA does not justify their exclusion.
Finally, as an aside, it seems to me that the following Burgh House principle is relevant to certain of the opponent's most recent partiality objections:
"11.1 Judges shall not sit in any case in the outcome of which they hold any material personal, professional or financial interest".
On certain points, the opponent made out a pretty clear-cut case for internal members of the EBA having either a personal or a professional interest in the outcome of G 1/21. I am curious to see how the EBA reasons their way around that point.
"On certain points, the opponent made out a pretty clear-cut case for internal members of the EBA having either a personal or a professional interest in the outcome of G 1/21. I am curious to see how the EBA reasons their way around that point."
ReplyDeleteThe objections concerning partiality have most likely be dissmissed as being late, because they could have been brought forward already in the first submission of the opponent. I'll leave it to the readers to decide whether such a formalistic dismissal will decrease the perception of bias on behalf of the EBA.
However, I am curious concerning the rejected procedural requests, in particular those related to the distribution scheme of the EBoA.
Partiality might be discussed in a non-open OP before the EBA, but the first decision in which the chair of the BA and his his faithful servant were removed by their peers, was taken without the parties. This is a scandal on its own as even the discussion on partiality should be of contradictory nature.
ReplyDeleteRefusing to hand over the declarations of X and Y, in other words Mrs R. and Mr E, is a further scandal. The parties have the right to know why the members accused of partiality consider themselves this is not the case.
The EBA is tumbling from one scandal to the next.
One wonder who will be the beneficiary of the deed!
I would say for some at the EPO the rules of law deserve a “dynamic interpretation”, and if they are not to their liking, they are simply ignored. The tragic fact is that people in charge of paying due respect to the EPC are actually acting against it.
The EBA falls withe the EQE committee with equally terrible disasters! What next?
ReplyDelete