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20 May 2021

European Patent Office, Enlarged Board of Appeal, G 1/21 – Interlocutory Decision of May 17, 2021, reported by Dr. Rudolf Teschemacher, Bardehle Pagenberg

The referral case G 1/21 in which the Enlarged Board of Appeal (EBA) has to decide on the question whether oral proceedings can be held as VICO without the consent of all parties (see post dated March 17, 2021) has raised a lot of public awareness. More than 40 amicus curiae briefs have been filed. Many of them deal not only with the substance of the referred question but also with the composition of the EBA. In particular, the Institute of Professional Representatives before the EPO (epi) submitted that the role of the Chairman of the EBA in drafting and proposing Art. 15a of the Rules of Procedure of the Boards of Appeal (RPBA) and his communications to the public on the practice of the Boards of Appeal gave gives rise to a suspicion of partiality.

Also, the appellant/opponent raised an objection under Article 24 (3) EPC against the Chairman, Carl Josefsson and the two internal technical members of the EBA, Gunnar Eliasson and Andrea Ritzka, for reason of suspected partiality. The objection was based on the involvement of the Chairman in the preparation and enactment of Article 15a RPBA which entered into force on April 1, 2021. For the other two members, the objection was based on their membership of the Presidium of the Boards of Appeal. The internal legal member Ingo Beckedorf, foreseen as rapporteur, informed the Enlarged Board that he had also been involved in the preparation of Article 15a RPBA and that his involvement could be qualified as relating to circumstances underlying the objections made by the appellant. For the decision on suspicion of partiality, these four members were replaced in accordance with Art. 24 (4) EPC.

The EBA finds that that the objection against the participation of the Chairman for reason of suspected partiality is justified. The EBA notes that the Chairman was involved in all stages of the legislative preparation of Article 15a RPBA, which is at least indirectly under review in G 1/21. His involvement was direct and decisive, as follows from the uncontested facts. He initiated the proposal, presented it for adoption and approval by the competent organs, he steered the practice of the Boards of Appeal in this direction and communicated this practice to the public. The reasoning of the ECHR in the decision McGonnell v. the United Kingdom of February 8, 2000 (Application no. 28488/95) that a direct involvement in the passage of legislation is likely to be sufficient to cast doubt on partiality, therefore seemed to apply a fortiori to the present case.

The EBA also finds that the legal member foreseen as rapporteur should not take part in the referral case G 1/21. In his capacity as member and task coordinator of the “Working group on VICO provision in RPBA” set up by the President of the Boards of Appeal, he was involved in the drafting of a proposal for a provision that later became Article 15a RPBA. He was also involved in presenting drafts for the proposal during discussions in the Presidium and with user representatives during the consultation phase. Unlike the Chairman, he did not play a formal role in the decision-making process leading to the adoption and approval of Article 15a RPBA. However, his active involvement in the preparation of the proposal was visible to other actors in the process and those with an interest in the way oral proceedings are conducted before the Boards Appeal.

In contrast, the EBA takes the position that the objection against the two internal technical members is not justified. The EBA is of the view that their membership of the Presidium and their participation in a consultative meeting where the proposal for the legislation at issue was discussed, is not enough to objectively justify the concern that the members in question are biased. Their role in an advisory body cannot be qualified as a direct involvement in the passage of legislation as discussed in respect of the Chairman.

As a result, the Chairman is replaced by the internal legal member Fritz Blumer and Ingo Beckedorf is replaced by Tamás Bokor. Oral proceedings to be held as videoconference for dealing with the referred question have been appointed for May 28, 2021

A copy of the decision can be read here.