G 3/08 – Novel Use of ... Amicus Curiae Briefs

Some courts allow the filing of so-called amicus curiae (“friend of the court”) briefs, i.e. written submissions by persons that are not parties to the case but who offer information on a point of law or some other aspect of the case to assist the court in deciding a matter before it. The Enlarged Board of Appeals (EBA) of the EPO also accepts such briefs.

There have been quite some amicus curiae briefs in case G 3/08 concerning several tough questions raised by the President of the EPO on computer implemented inventions. One of them contested the impartiality of Board members. The EBA has recently taken an interlocutory decision in order to deal with this objection.

[…] As provided by A 24(3) EPC, members of a Board of Appeal (BA) or of the EBA may be objected to by any party for one of the reasons mentioned in A 24(1) EPC, or if suspected of partiality. Whereas objections based on A 24(1) (iudex inhabilis) may be raised by anyone, whether he is a party or not, the right to object to a member of the Board because of alleged partiality (iudex suspectus) is reserved to parties in the proceedings (see interlocutory decision in case G 2/08 [1.4]).

In referral cases under A 112 EPC, however, members of the public who file amicus curiae briefs do not have the status of a party. They are not entitled to file requests but only to submit their personal view of the case or that of their organisations, in order to support the Board with arguments that should be considered in its findings. Since an amicus curiae is not a party to the referral proceedings his request for exclusion of a member of the EBA or of the EBA as a whole is inadmissible under Article 24(3). [1.2]

However, pursuant to Rule 4(1) of the Rules of Procedure of the EBA (RPEBA), the procedure of A 24(4) is also to be applied, if the EBA has knowledge of a possible reason for exclusion or objection which does not originate from a member himself or from any party to the proceedings. Under this provision the submissions of a third party with respect to a member of the EBA to be objected to according to A 24(1) or suspected of partiality under A 24(3) are taken as information on the basis of which the Board can ex officio look at the alleged grounds of objection or suspicion of partiality. [1.2]

[…] Turning to the present case, the EBA notes that the submissions in the amicus curiae brief are vague and largely unsubstantiated. The brief does not say who made which concrete remarks in which function under which circumstances and in which connection with respect to the referred questions such as to justify his exclusion as a member of the EBA for reasons of suspicion of partiality. Nevertheless the EBA is in the position to identify Mr D. Rees on the basis of these submissions as the member suspected in the amicus curiae brief and is also aware of his earlier duties as a director in DG 2 of the EPO between 2000 and 2003 and as an expert for the EU-Commission in the field of CII at that time.

But these facts submitted to establish the suspicion of partiality are not suitable to do so. The mere general and unsubstantiated assertion that the member in question explained as an expert in earlier times, when he was still a director in DG 2, that the jurisprudence of the BA in the field of computer implemented inventions would not be against the EPC and the law of the member states of the EPO cannot support an argument that this member or even the whole EBA in this case should be excluded from dealing with the referral. Nor can such a conclusion be supported by the – actually incorrect - submission that the members of the present EBA are all members of the BA. This is not an argument justifying the assumption that - deciding on the present referral - they are not solely bound by the provisions of the EPC. [2.3]

According to established case law of the BA, of the EBA and also of national courts of member states, the mere fact that a board member has expressed a view on the legal issue to be decided on a previous occasion, be it in a prior decision or in literature, be it in a prior position in the EPO or as an expert for external political institutions, cannot lead to the conclusion of doubts as to impartiality. Nor does a purely subjective impression that the opinions of a board member might be disadvantageous to a particular interest justify an exclusion [2.4]

Once lawfully appointed, a judge is deemed to act in good faith and is therefore presumed impartial until proven otherwise. […] Moreover the parties to judicial proceedings have a right to have their case considered and decided by lawfully appointed judges. Such judges not only have the right to be member of a Board but also have the duty to decide in the cases allocated to them. They can neither withdraw at will from the proceedings, nor be objected to, at will, by a party to the proceedings, or by any other person. On the other hand they have to withdraw from a case in which their impartiality could be reasonably doubted […]. E.g. there might indeed exist an issue of partiality if a judge let it be known that he would never change his mind on certain questions on which he has given his opinion before. However, in the present case there is no indication whatsoever that this might be so. [2.5]

Therefore, this Board sees no reason to exclude Mr Rees or to replace further members. [3]

I always wonder why people still try to obtain exclusion of Board members – has such an objection ever been successful ? If the objection does not succeed – which, statistically speaking, is highly probable – it could have a boomerang effect: I for one would expect paritality objections to make at least one Board member ill-disposed to the cause of the person requesting his or her exclusion.

Be that as it may, what we learn from this case is that amicus curiae briefs may be used to have the EBA examine the partiality of one of its members.

NB: Although brand new, this interlocutory decision has already been abundantly commented on patent blogs, e.g. here (in English) and here (in French).

To read the whole decision, click here.