That went quick.
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Does an order made by the replaced chairman to hold oral proceedings as a video conference cease to have effect upon such replacement?
This really ought to be the case for all of the previous Chairman’s decisions, not just the decision regarding the mode of oral proceedings. An individual who has been excluded on the grounds of a justified suspicion of partiality really ought to have no influence whatsoever on the proceedings. However, the previous Chairman has determined the composition of the (rest of) the EBA, the date of oral proceedings and the mode of oral proceedings. All of those decisions could prove to be highly influential with regard to the outcome of the proceedings (eg with the extremely short deadline for filing amicus briefs potentially having the effect of significantly reducing the number of briefs filed, as well as the amount of time and effort that could be dedicated to gathering supporting evidence, or otherwise making the arguments in the briefs as persuasive as possible).
In conclusion, it seems to me that, strictly speaking, the slate should be wiped clean and the whole process started again … with the first step being the selection of a new composition of the EBA by the new Chairman. However, I can see nothing in the interlocutory decision that indicates that the EBA is considering rescinding any of the decisions taken by the previous Chairman.
Not quite quick enough to make the EPO President pause for thought before extending (to 31 Jan 2022) the “pilot program” for VICOs in opposition.
https://www.epo.org/law-practice/legal-texts/official-journal/president-notices/archive/20210520.html
The EBA’s confirmation that water is wet (ie that the Chairman should be excluded on the grounds of suspected partiality) raises an important question about why the Chairman did not recuse himself from the entire proceedings. Did he really think that he might be able to continue? Sadly, I think that we can conclude that he probably did think this. This is because he appears to have made last-minute, token efforts towards an appearance of impartiality, namely he:
“refrained from presenting CA/5/21 or discussing the proposed amendment of the RPBA during the meeting of the Administrative Council on 23 March 2021 where the proposal for Article 15a was discussed”; and
“did not make any comments, be it internally or publicly, on the referral G 1/21”.
This suggests to me either a lack of understanding of the legal principles underpinning the independence of the judiciary or, more likely, a desire to continue as Chair of the EBA despite the obvious problems of partiality (ie where he would be effectively deciding whether his own actions were in accordance with the EPC). Either way, this is not a good look for the President of the Boards of Appeal.
The pressure had really become too great, but the job was only half done. Given the overwhelming evidence it was difficult for Mr J. to be retained. That Mr B was exchanged was as necessary as exchanging Mr J.
To claim that the two members of the Presidium, Mrs R and Mr E, were only consulted and therefore cannot be suspected of bias is a mockery.
It also remains that the sword of Damocles of non-reappointment as a member of the BA is a good instrument helping to flex some spines that should not be underestimated.
I hope that the members of this EBA will have the courage to resist the pressure as those who dared resist the previous EPO President when he trampled on the separation of powers.
We must not forget that the issue to be discussed goes far beyond the BA.
It is the whole New Normal that Napoleon’s 4th worthy successor wants to establish that is at stake.
I cannot but agree with Concerned Observer about the behaviour of the president of the BA in this whole affair. It is tragic to see a person having been a judge himself to behave as he did. Whatever the outcome of G1/21 will be, his authority will have been severely damaged.
He should resign should he have some self respect. But would the BA would be better managed should Mr.B take over?
Even the perception of independence of the BA has been shattered by now! A real independence has never existed.
Let’s hope that not only G 3/19 but also G 1/21 will be brought to the attention of the German Federal Constitutional Court when it will take a decision on the independence of the BA.
A straightforward decision which gives convincing reasons for a result unavoidable under established principles of the rule of law. However, it cannot do away with what has happened outside the referral proceedings. All those who are involved in the reappointment of the internal members of the EBA have made very clear what they expect the EBA to decide: the President of the Boards of Appeal, the President of the EPO, and not the least the Administrative Council by approving and thereby enacting Article 15a RPBA, notwithstanding the pending referral instead of waiting for the outcome of the referral and respecting the authority of the EBA. Another call for a for dynamic interpretation of the EPC?
Another curious aspect of the interlocutory decision is the discussion of the objections against X and Y (Eliasson and Ritzka).
When faced with objections to his participation, Z (Beckedorf) voluntarily disclosed to the EBA information that had not previously been disclosed to the public (or at least not officially confirmed). That is, he disclosed his role “in the drafting of a proposal for a provision that later became Article 15a RPBA” and “in presenting drafts for the proposal during discussions in the Presidium and with user representatives during the consultation phase”. This was the correct thing to do, and led to the EBA excluding him from the proceedings.
However, it seems that X and Y were perhaps not so forthcoming about their involvement “in presenting drafts for the proposal during discussions … with user representatives during the consultation phase” (see Flopsy the bunny’s comments at https://ipkitten.blogspot.com/2021/03/board-of-appeal-in-t180715-continues.html?showComment=1616068909443#c2902789645718470710).
It also seems that X and Y were remarkably tight-lipped about the advice that, as members of the Presidium, they provided to the President of the Boards of Appeal in connection with proposed Article 15a RPBA.
It is difficult to imagine that the information seemingly not disclosed by X and Y would have been irrelevant to the EBA’s consideration of the objections to those members. Indeed, participation in discussions with user representatives was one of the grounds mentioned by the EBA in connection with the exclusion of Z. Further, if, in fact, the Presidium (including X and Y) supported the proposal to introduce Article 15a RPBA, would that not have been highly relevant to the question of whether they should be excluded? Indeed, would it not also be highly relevant if the Presidium did NOT support the proposal? As it is, it seems that X and Y have not been excluded simply on the grounds that information pertaining to possible grounds to suspect partiality has not been made public.
Whilst it is perhaps possible that X and Y have indeed maintained a sufficiently impartial stance throughout this whole saga, it seems that the public will never know for sure whether this is indeed the case. It almost goes without saying that this is not an ideal outcome with regard to inspiring public confidence in the impartiality of the EBA.
It would be nice to know how the individual members of the EBA in charge of this referral have been selected. One should assume that in the recent weeks and months the point at issue has been amply discussed internally of the Boards of Appeal, so that most members personal opinion might have been well known. Is there any mechanism in place to avoid any purposive selection of the members appointed in a case and if so, is it possible for outsiders to check whether it has been properly applied here?
Hand selected by the VP3/PresofBoA.
No.
No.
I’m not an attorney at law, just a mere patent attorney, and therefore I am not 100% clear on whether the issue of “partiality” is coterminous with the age-old and hallowed principle of nemo iudex (nobody should be judge in their own cause) which Thorsten recently so helpfully wrote to us about here:
https://patentblog.kluweriplaw.com/2021/05/11/a-few-more-thoughts-on-normality/
I found no mention of this principle anywhere in the wording of G1/21 of 17 May 2021. Might that be because it is too delicate to go anywhere near? Is “partiality” a convenient carpet under which to sweep the elephant currently stomping around the room?