Suspicion of Partiality in Enlarged Board of Appeal found justified
This moggy noticed a little while ago an extraordinary interlocutory decision from the Enlarged Board of Appeal of the European Patent Office in case R 19/12 (an application for review of a decision of a Board of Appeal). It is unfortunately in German (and seemingly will stay in German only, since it is not marked for publication in the Official Journal of the EPO), and so he is immensely grateful that Katfriend Rudolf Teschemacher of Bardehle Pagenberg has prepared a jolly useful note over on the EPLaw Patent Blog, which he urges interested readers to consult.
The decision does not seem to have sparked the interest that it deserves, despite the fact that it has profound ramifications. In fact, this Kat has seen only one other report, over in the news section of Dennemeyer's website.
In short, the Enlarged Board of Appeal, sitting in alternate composition without its chairman, found that an objection to the participation of the chairman on the basis of suspicion of partiality was justified, and ordered that he be replaced. This would be astonishing enough, since successful accusations of partiality are extremely rare at the EPO. What is more amazing is that the reason has nothing to do with the chairman personally, it is simply that he also held the role of Vice-President, DG3 (DG3 being the Directorate General responsible for Appeals). According to Article 10 of the European Patent Convention, Vice-Presidents of the EPO shall assist the President. Accordingly, the Vice-Presidents, including the Appeal Board member in question, sit on the "Management Committee" of the President. The Enlarged Board of Appeal held that this dual function comprised his judicial independence and so gave rise to a justifiable suspicion of partiality. As the EPLAw report notes:
Because the reason relates to the structure of the management of the EPO, it presumably applies to this member in any appeal case, and to any other Board of Appeal member that might occupy a management position with administrative function in future. This Kat supposes therefore that some readjustment of the management of DG3 will be required.
The decision does not seem to have sparked the interest that it deserves, despite the fact that it has profound ramifications. In fact, this Kat has seen only one other report, over in the news section of Dennemeyer's website.
 |
| Who said "judicial independence"? |
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.
Because the reason relates to the structure of the management of the EPO, it presumably applies to this member in any appeal case, and to any other Board of Appeal member that might occupy a management position with administrative function in future. This Kat supposes therefore that some readjustment of the management of DG3 will be required.
