Today, the oral proceedings regarding G1/21 concerning the question whether oral proceedings before the EPO in principle can be conducted by videoconference, even against the will of the parties, took place.
Due to a first objection for suspicion of partiality concerning the original Chairman and a legally qualified member said Chairman and legally qualified member were replaced for today’s hearing. Two other members also objected to were not replaced and formed part of the composition of today’s Enlarged Board of Appeal.
The initial Chairman and President of the Boards of Appeal was found biased since he performed legislative and managerial acts in relation to the new Article 15a RPBA. The legally qualified member who was replaced for today’s hearing was also found biased although 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 of Appeal.
The two further members were not found biased merely due to the fact that they are members of the Presidium of the Boards of Appeal and were consulted by the President of the Boards of Appeal on the proposal for new Article 15a RPBA. Their involvement was not considered sufficient to find suspicion of partiality.
The first point which was dealt with during oral proceedings was the admissibility of the further objections/requests raised by the Appellant with letter of 24 May 2021 which primarily dealt with suspicion of partiality objections against several members of the Board. To discuss the admissibility of these new objections/requests the public was excluded from the discussion with the Appellant and informed about the outcome after internal deliberation.
The suspicion of partiality objections raised by the Appellant with his letter of 24 May 2021 are in brief:
Two regular members of the Board, which were already objected to earlier were objected to again as suspected of partiality since both were at the relevant time members of the Presidium of the Boards of Appeal and may have participated in the drafting process and the presentation of the draft proposal to the user representatives. It was criticized that the necessary information about their activities is, however, not in the public domain but in the hands of the Boards of Appeal and should be made available.
It is additionally argued that these two regular members in addition to a further regular member already belonged to the composition of the Enlarged Board of Appeal according to the Order of 17 March 2021 and as a result thereof might be influenced by the discussion with the already replaced members.
Furthermore, all regular members of the Board are further suspected i) since they have a personal interest arising from today’s decision because it will influence their physical work place i.e. at home or at the premises of the Boards of Appeal; and ii) are subject to the reappointment procedure every five years which is influenced by the President of the Boards of Appeal who was already removed from the composition of the Enlarged Board of Appeal due to suspicion of partiality.
Furthermore, general objections were submitted regarding the principle of the statutory judge and the principle of the impartiality and neutrality of the judge due to violations of the selection of the new members according to the business distribution scheme. Additionally, the original replacement of two of the four legally qualified regular members with legally qualified external members was objected to since it was conducted by the previous Chairman who afterwards was considered to be suspected of partiality and replaced.
After resumption of the oral proceedings the Chairman announced the inadmissibility of all further objections and the proceedings were continued with the same composition.
However, the appellant submitted a further request during the non-public procedure which was dealt with after public resumption of the oral proceedings:
The Appellant argued that his right to be heard was violated as the comments of the President of the EPO together with the amicus curiae briefs were formally delivered to him only two days before the oral proceedings. The Appellant argued further that two days were not sufficient to consider and comment these documents as provided in Article 9, second sentence RPEBOA. Therefore, the oral proceedings should be postponed.
Hereupon a discussion arose whether the actual knowledge of the comments of the President of the EPO due to the publication on the EPO website was sufficient or a regular notification would have been required. The representative of the President of the European Patent Office argued that a postponement is not in the public interest because a significant amount of pending proceedings are affected and legal certainty is required as soon as possible. The Appellant rebutted that oral proceedings currently are done by videoconference without the consent of the parties despite the pending referral and therefore there is no time pressure in this respect. Additionally, the question underlying the referral is of such importance that diligence should be given more weight than speed.
At the end of the oral proceedings the Enlarged Board of Appeal announced that the Appellant gets the opportunity to file his observations on the President’s comments by 25 June and new oral proceedings will be scheduled in the first week of July as the Appellant consented to a shortened period for the issuance of the new summons.
We find the objections with respect to the regular members regarding their personal interests and their lack of independence due to the reappointment procedure convincing but cannot see any options to remedy this under the current structure of the European Patent Organization wherein the legislative, administrative and judicative functions are not entirely separated and in particular a 5 year reappointment procedure for the members is still in place.
As regards the question whether a publication on the EPO’s website can substitute a formal notification to the parties, we believe that a formal notification is required and cannot be replaced by a publication on its website as this might affect the communication between the Boards of Appeal and the parties in general. It is reassuring that the Enlarged Board of Appeal did not issue a final decision today but gave the Appellant the possibility to file observations on the President’s comments.
Already today’s oral proceedings were interesting although the core question whether oral proceedings before the EPO in principle can be conducted by videoconference, even against the will of the parties, has not been touched.
We will keep you informed.