The re-scheduled Enlarged Board of Appeal (EBA) oral proceedings for referral G1/21 (ViCo oral proceedings), were held last Friday. The EBA did not announce a decision during proceedings and we now await a written decision. The EBA oral proceedings were themselves plagued by technical issues that, unfortunately for the EPO, were not a great advertisement for the benefits of ViCo proceedings. For critics of ViCo, these difficulties were an ironic reminder that ViCo cannot be considered equivalent to in-person proceedings. However, the fact that the oral proceedings were conducted by ViCo meant that anyone was able to watch proceedings in the referral without the inconvenience and expense of attending the EPO in-person. The proceedings thus will have received an audience far wider than would otherwise have been the case. So where does the balance between fairness, efficiency and justice lie?
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| Tuning in to G1/21 |
G1/12: Case Catch-up
Earlier this year, the EPO introduced a new rule of procedure of the Boards of Appeal (RPBA), Article 15a (IPKat). This new article permits Boards of Appeal to hold oral proceedings by ViCo whenever "the Board considers it appropriate to do so", in other words, even without the consent of all parties. Whilst many 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 stems from the appeal of the opposition decision to maintain EP1609239 in amended form (T1807/15) (IPKat). The referral in G1/21 asked whether Article 15a RPBA is compatible with the right to oral proceedings as enshrined in Article 116(1) EPC.
Oral proceedings Part I (May 2021) (IPKat)
G1/21 has been dogged with criticism that the Enlarged Board appointed to hear the referral lacked impartiality, or at the very least the appearance of such, given the members' own involvement with the adoption of Article 15a RPBA (IPKat). In response to objections from the Opponent that the EBA was at risk of perceived partiality, the composition of the Board was changed shortly before the first oral proceedings (IPKat). However, the Opponent was not satisfied with the extent of changes. The start of the first oral proceedings were thus conducted behind closed doors whilst the EBA discussed the Opponent's request for further members of the Board to be replaced. These requests were subsequently rejected.
The EBA next went on to deal with a further procedural objection raised by the Opponent. The Opponent particularly submitted that they had only been formally informed of the EPO President's comments on the referral 2 days before oral proceedings. Given the high profile nature of the case, it seems highly likely that the Opponent had already been unaware of the President's comments, which had been available on the public register since April, before they received the formal notice. Nonetheless, the EBA accepted that the proper procedures had not been followed and oral proceedings were consequently rescheduled for July.
Oral proceedings, Part II (July 2021)
In the intervening month between the first and second oral proceedings, there was more back and forth between the EBA and the Opponent on the partiality question. Oral proceedings Part II itself began with the ambitious request from the Opponent that the EBA declare itself non-competent, and that proceedings be further delayed. The EBA rejected both of these requests.
It was then finally time for the arguments on the substantive matter of the referral to be heard. The representative of the President of the EPO presented the case in favour of the legal allowability of mandatory ViCo oral proceedings. Put simply, the President's argument was that Article 116 EPC does not specify the form in which oral proceedings should be conducted. Whether or not to conduct proceedings by ViCo is therefore at the discretion of the EPO deciding body.
In response, the Opponent argued that Art. 116 does not mention ViCo oral proceedings, and that mandating that oral proceedings be held by ViCo is an abuse of a party's right to be heard in person, and the rights provided in Art. 116.
An interesting exchange between the EBA and the President's representative concerned the question of whether the preference of EPO users should influence the EPO's decision on ViCo oral proceedings. The EBA noted the many amicus curiae arguing against mandatory ViCo oral proceedings (about 30 of the total 50 amicus curiae submitted on the referral). In response, the President's representative noted that parties have been overwhelmingly in favour of oral proceedings by ViCo. Furthermore, before oral proceedings by ViCo were mandatory, only 300 oral proceedings by ViCo were held, with one party in the dispute being able to stall proceedings for all the others. Since oral proceedings by ViCo have become mandatory, 3000 oral proceedings by ViCo have taken place. As such, it was argued, oral proceedings by ViCo provides quick access to justice and early legal certainty for the parties involved.
However, the relevance of the statistics and user feedback cited by the EPO are questioned by critics, who note that we are still in the midst of a pandemic. Whilst ViCo oral proceedings have been essential for keeping the process of justice going during the extraordinary circumstances of a global crisis, it is argued that this does not justify a change to ViCo oral proceedings once the current crisis has been overcome.
We now await the EBA's written decision.
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)
28 May 2021: Oral proceedings in G1/21 (ViCo) rescheduled due to procedural technicality
Reviewed by Rose Hughes
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Tuesday, July 06, 2021
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It is clear that with the original composition of the EBA the answer to G 1/21 was known in advance as four members of the EBA had publicly expressed the view that it should be left to the discretion of the boards which form OP should take. With two of those send out by their peers the answer is not so clear cut, certainly in view of some of the questions raised by members of the EBA during the OP.
ReplyDeleteIt remains scandalous that the first deliberation on partiality was taken in the absence of the parties and the parties did not receive the declarations of the members suspected of partiality. This also explains the further requests on partiality from the opponent. The fact that the chair of the boards which was also chair of the EBA in G1/21 before he was removed does not simplify the matter.
The attitude of the president’s representative was obnoxious to say the least. Claiming against any for form of common sense that Art 116 in the absence of any specific indications gave the right for the EPO to decide the form of OP by ViCo and the parties have no say in the matter. He went so far as to claim that there has never been a right to have OP on the premises and that a right which does not exist cannot be taken away.
One thing became clear during the OP is that OP by ViCo have no legal basis in the EPC as it stands.
For the president’s representative G 3/19 (the famous dynamic interpretation) has shown that it was perfectly possible to amend the EPC by way of secondary legislation. The absence of the rapporteur in G 3/19 could save us from a further dynamic interpretation.
For the president’s representative G 2/19 only provided that only in case of the OP on the premises of the EPO that the sentence in said decision “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” was valid.
In case of OP by ViCo “The venue of the oral proceedings will be deemed to be the location where the opposition division is set up.” See decisions of the president of 01.04.20 and 14.04.20 on OP by ViCo before ED resp. OD. In other words the location is purely virtual.
This actually the wish of the president. In its New Normal the president wants to set up a virtual EPO where ED and OD will only be residing on paper at a given location of the EPO.
Without the possibility of the BA to have the discretion to decide on OP by ViCo without the consent of the parties and the possibility to authorise its members to be sitting wherever they desire when having OP by ViCo, the president cannot implement his New Normal.
This is actually the true reason why the president is so keen to obtain a positive reply from the EBA in G 1/21. With Mr J., Mr B, Mrs R and Mr A the result was acquired, now I am not as sure as only Mrs R and Mr E. were left.
The comparison 300/3000 does not hold. It simply means that the parties could have cases decided and a backlog of opposition decisions could be avoided. It does not mean that all the parties were keen on mandatory OP by ViCo after the pandemic. In view of the majority of the amicus curiae the contrary seems correct.
It is difficult to understand why mandatory OP by ViCo after the pandemic would give quicker access to justice as the periods to summon and to file documents under R 116(1) do not change whether the OP is by ViCo or in presence and certainly do not justify pushing for mandatory OP by ViCo outside the pandemic.
The founding fathers of the EPO are spluttering in their cocoa or turning in their graves. Sad days.
ReplyDeleteHad the present and the previous management team been at the helm of the EPO at its beginning, the EPO would never have become what it is was before 2010.
ReplyDeleteIt is sad to see those pseudo managers, by no means leaders, driving the EPO into the wall merely to satisfy their desire for power.
The AC has completely given up its control function, it is as has been the said the tail wagging the dog.
Contrary to the view of the President's representative, a "dynamic" interpretation based upon secondary legislation is NOT possible in this instance.
ReplyDeleteThe competence of the AC to amend Articles of the EPC is limited (by Article 33(1)(b) EPC) to amendments that are for the purpose of bringing the EPC “into line with an international treaty relating to patents or European Community legislation relating to
patents”. This criterion is NOT satisfied with respect to Article 116 EPC.
Perhaps the President's representative is aware of a really obscure international treaty (or piece of EU legislation) which relates to patents AND which specifies that oral proceedings can be conducted by VICO without the consent of parties to the proceedings. However, given that they did not mention any such treaty (or legislation), then I can only assume that they instead believe that Article 33(1)(b) EPC can also be interpreted "dynamically" (ie in whichever way happens to suit the current plans of the EPO President).
One of the further problems in the present case is that judges cannot decide upon the law as this is for the legislator to do. They have to interpret it.
ReplyDeleteIn this respect the dynamic interpretation in G 3/19 was just there in order to affirm that R 28(2) was conform with Art 53(b) which is blatantly not the case.
It was therefore good to see that the author of this dynamic interpretation and his superior where removed by their pairs.
I doubt that with the present composition in G 1/21 we will face any dynamic interpretation.
If the EBA give a positive reply to the question raised outside the pandemic, we can say good by to the rule of law at the EPO.
I just hope that the other 5 members of the EBA will have enough dignity to say no to such a shamble.
@Attentive Observer
ReplyDeleteIs it any wonder that the AC has given up its control function and that the tail is wagging the dog?
Since 2010, the Office Administration has been completely infiltrated by former AC members.
To list just a few:
Battistelli, Casado, Lutz, Topic, now followed by Campinos (who used to head the Portuguese delegation before he moved to Alicante), Ernst and most recently Ficsor as PD in the Legal Affairs department.
With such extensive cross-pollination and no effective external oversight is it any wonder that things have developed as they have?
@ Wagtail
DeleteYou are certainly right. The cross pollination is taking dramatic levels.
There should be a cooling off period, for instance 2 years, between functions at the AC and at the EPO.
There is also another problem. The cooperation budget is misused to "buy" votes at the AC. All the presidents used this budget to a certain extent in order to obtain favourable votes at the AC.
The last two presidents have expanded this mechanism to a degree which is not acceptable. The cooperation budget is modulated after each AC session. The countries having voted "correctly" see their cooperation budget increased. The countries not having voted "correctly" or having asked embarrassing questions see their cooperation budget reduced.
Guess who is presently PD cooperation: the husband of Mme HR. Both have come to the EPO with Napoleon 4th. She was propelled to PD HR and we all know how disastrous this was for the staff. He moved from the post of chef de cabinet of Napoleon 4th to PD cooperation.
The present tenant of the 10th floor preferred to be surrounded by people coming from the Iberian peninsula in general and Alicante in particular.
The EPO is rotting, and as Mao (who I do not admire) was right when he said the fish stinks from the head.
And particularly disturbing about that is, as I'm sure a number of readers on here will know, the big Iberian based office that is the source you discuss was (and presumably still is) consistently poor at most administrative tasks - spare a thought for anyone needing to do a change of representative for a registration of a client who uses more than one representative!
DeleteIf there were any doubts remaining about the willingness of the President's legal representatives to defend the indefensible, then Judgement 4430 of the ILO AT should set those doubts aside:
ReplyDeletehttps://suepo.org/public/J4430_132_%20Circular347.pdf
The Tribunal comprehensively dismissed the EPO's arguments on whether the complaints were receivable. It also found a total of five reasons for concluding that provisions enacted by the EPO were, contrary to the arguments of the President's representatives, unlawful violations of the right to strike.
Such violations of fundamental rights of employees were always as plain as a pikestaff to anyone who cared to consider the effects of the provisions enacted by the EPO (with the assistance of the Administrative Council). The ILO AT has therefore done nothing more than state the obvious. However, given that it receives funding from the EPO, there were no guarantees that the Tribunal would reach that obvious conclusion. Also, it took a total of 8 years for the EPO's staff to be vindicated in such an open-and-shut case. The EPO's continued approach to defending the indefensible has therefore achieved a very significant delay to justice being served. Moreover, it is unclear whether the EPO will now set its house in order by settling all other complaints against the unlawful provisions, and rescinding the provisions in question ... though I would not hold my breath waiting for them to do this.
How long can the patent profession tolerate a situation in which the EPO, with the assistance of the AC, adopts very clearly unlawful measures and then - against all sensible legal reasoning, logic and common sense - fights tooth and nail to defend them? As demonstrated by G 2/19, G 3/19 and G 1/21, the EPO no longer restricts the application of "controversial" measures to its staff.
There is a press release on the BoA web site indicating that the decision is that oral proceedings may be held by video conference without the approval of the parties in a time of emergency.
ReplyDeletehttps://www.epo.org/law-practice/case-law-appeals/communications/2021/20210716.html