EPO responds to accusations of perceived bias in G1/21 (ViCo oral proceedings)

The referral to the Enlarged Board of Appeal (EBA) in G1/21 relates to the legality of conducting Board of Appeal oral proceedings by Video Conferencing (ViCo) without the consent of all parties (IPKat). The rapidly scheduled public hearing will take place via Zoom next week (28 May 2021). The EPO has now opened registration to watch the livestream. 

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 referral in G1/21 asks the question 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). The Opponent originally requested the referral to the EBA as an auxiliary request in the appeal hearing. The Opponent subsequently withdrew the request. The Board of Appeal none-the-less decided to continue with the referral (IPKat). The Opponent has since changed representatives, and has submitted a request that the referred question should be answered in the negative, i.e. that ViCo oral proceedings without the consent of all parties are not compatible with Article 116(1) EPC. The patentee will not be participating in the oral proceedings. 

In testament to the controversy surrounding ViCo oral proceedings, the referral has attracted almost 50 amicus curiae. These include submissions from epi, CIPA, multinational companies (BASF, Philip Morris, Siemens) and patent attorney firms. Aside from the substantive question of the legality or otherwise of Article 15a RPBA, considerable concern has been raised by multiple parties over the risk of perceived partiality by the EBA members themselves.  

Proficiency in law via Zoom

According to Article 24 EPC, members of the Boards of Appeal or EBA may not take part in a case in which they have any personal interest in the decision. The Composition of the EBA panel to hear the referral, as first announced, named Mr Carl Josefsson (President of the Board of Appeal) as the Board Chairman. Mr Carl Josefsson was involved in drafting new Article 15a RPBA. The EBA panel also included two Board of Appeal members, G. Eliasson, and A. Ritzka, who were also suggested to have been involved in the adoption of new Article 15a RPBA as members of the Boards of Appeal Presidium (i.e. the body within the Boards of Appeal that, inter alia, advises the President of the Boards of Appeal on amendments to the RPBA) (BOAC/16/20). 

The EBA has now issued an interlocutory decision changing the composition of the EBA panel. Importantly, the EBA panel deciding on the question of perceived partiality did not include the original members against which the objections had been made. 

The EBA found that there was indeed a justified fear of partiality in the case of the Chairman, Mr Carl Josefsson, who has now been replaced as Chairman by Mr Fritz Blumer. The EBA particularly found that:

[Mr Carl Josefsson] has performed legislative and managerial acts based on the view that oral proceedings by videoconference without consent of all the parties are compatible with Article 116 EPC. If the Enlarged Board gave a negative answer to the referred question, this would mean that the above mentioned acts would lack a legal basis and would contravene the EPC [...] The concern that the Chairman might have a bias towards answering the referred question in the positive in order to avoid the outcome that his own acts were not in compliance with Article 116 EPC, is therefore objectively justified. 

On the issue of the involvement of two other members of the original EBA panel (G. Eliasson, and A. Ritzka) in the Presidium, the EBA was not convinced that this was evidence of a risk of partiality. The EBA noted that the Presidium was not asked to give an opinion, positive or negative, on Article 15a RPBA. The EBA therefore rejected the request for replacement of G. Eliasson, and A. Ritzka.  

However, the interlocutory decision did note that another member of the panel, I. Beckedorf ("Z"), was "a member, and task coordinator, of the 'Working group on VICO provision in RPBA'", and was thus involved in drafting Article 15a RPBA. Consequently, the EBA found that: 

it would not inspire confidence in the impartiality of the Enlarged Board if Z would also be part of the panel that decides on the compatibility of oral proceedings by videoconference without consent of the parties with Article 116 EPC. There may exist in the public eye an objectively justified concern that he, like the Chairman, might be biased towards answering the referred question positively, because answering the question negatively would imply that he has been actively involved in the preparation of a proposal that is not compatible with Article 116 EPC.

I. Beckedorf has therefore also been replaced on the panel. 

The (virtual) stage is now set for the public hearing next week. Stay tuned to IPKat! 

Further reading

29 March 2021: Chairman and Enlarged Board criticised for lack of impartiality in ViCo oral proceedings referral (G1/21)

16 March 2021: BREAKING: Board of Appeal in T1807/15 continues with ViCo oral proceedings referral

9 Feb 2021: BREAKING: The legality of Board of Appeal oral proceedings by video conference has been referred to the EBA