Saturday, 16 January 2010

R 12/09 – Board Work Does Not Disqualify EBA Members

This interlocutory decision deals with an objection under A 24. As always, the outcome is predictable, to say the least. Another one bites the dust, as Freddy Mercury would have said.

According to its wording, A 24 is to be applied both to the members of the Boards of appeal and to the members of the Enlarged Board of Appeal (EBA), and, for the latter, both in their function under A 112 and in the function under A 112a, which has later been attributed to them. There have already been objections against members of the EBA because of suspected partiality. As the recent case law of the EBA shows, it has been decided that an objection of suspected partiality cannot be based merely on the fact that a member of the EBA had already been dealing with the matter under consideration as a member of a Board of appeal (see G 1/05 [27]; G 2/08 [4.2]) Although this case law is interesting (but not directly relevant) with regard to the present case, there is a certain difference between the reasons for objections which are invoked by a party under A 24 and the reasons which are actually acknowledged as such. [1]

As the petitioner itself has admitted, the admissibility of an objection is a question on which the EBA has to decide in its original composition. The petitioner is of the opinion that as far as the admissibility is concerned, all it had to show is that it had taken no procedural step while being aware of a reason for objection (A 24(3), second sentence). It pointed out that this requirement was fulfilled in the present case.

The EBA approves this opinion in so far as there is no corresponding reason (Grund) for objection. However, the question of admissibility is not limited to the examination of this requirement but also includes the question whether the objection is sufficiently substantiated. The petitioner tries to argue in its letter dated November 23, 2009, belatedly (nachträglich), that sufficient reasons (Begründung) are not required for an objection to be admissible, because this would entail that the objected members  also decide on the substance of the request. The EBA is of the opinion that this argument is based on a misunderstanding. The decision of whether an objection is sufficiently substantiated is a decision on whether the objection satisfies the minimal requirements for factual (sachlich) reasons and not on whether the reasons are convincing. This point is well summarised in T 1028/96 [2] on which the petitioner relies:

“However, even if it is not expressly stated in A 24(3), the EPC requires, as a general rule, that objections be reasoned, i.e. indicates facts and arguments which are alleged to support such objection. From this requirement it follows, firstly, that an objection based on purely subjective unreasonable doubts which exist only in the mind of the objecting party should be rejected as inadmissible. It also follows that if facts and arguments filed cannot support the objection of suspected partiality raised, the objection is likewise inadmissible. Thus the threshold to be crossed over by a party calling the composition of the Board into question also comprises this formal precondition.” (emphasis added)

Therefore, as far as the substantiation is concerned, the Board has to verify that the objection is based on “facts and arguments” which at least indicate that the reason for objection is a reason that is acknowledged as such by the law. [2]

The objection of the petitioner is based exclusively on the fact that all three members of the EBA who were designated to examine whether the petition for review was clearly inadmissible or unallowable according to R 109(2) were also members of Technical Boards of appeal (TBA) or the Legal Board of appeal (LBA). The petitioner has made clear that it has no objection against the three members based on their personal behaviour or interests and that it would also object to any other member of the EBA who also was member of a TBA or the LBA. However, not without some contradiction, the petitioner has left open whether it would also object to deputy members of the EBA who would have to decide on the objection. Although the objection relies both on possible personal interest and on possible partiality of the members of the EBA, the distinction between personal interest and partiality does not change the fact that the objection is fundamentally based on the fact that the objected members are also members of a TBA or the LBA. [3]

When assessing whether the objection is sufficiently substantiated the  EBA has to answer the following question: Is the fact of being a member of a TBA or of the LBA on its own a reason which under A 24 has to be considered as a reason for exclusion or objection of a member of the EBA in proceedings under A 112a ? The Board would have to answer this question along the lines proposed by the petitioner unless it came to the conclusion that it would contradict the intention of the legislator to cover this situation under A 24.

When the Board during the oral proceedings pointed out that the present proceedings for deciding on petitions for review have always been foreseeable for the legislator, the petitioner answered that this was outside its responsibility and that it was not its fault if the implementation of A 112a was ill-conceived and had been carried out in a “sloppy” (schlampig) way. However, the EBA is of the opinion that the legislator’s will cannot be disposed of so easily. Quite to the contrary, the EBA owes it to the public and other parties who wish to file petitions for review under A 112a in the future to establish certainty on the legislator’s will, so as to ensure that it is enforced. [4]

The legislative history of A 112a shows that it has to be understood as an extraordinary legal remedy for a limited case of very particular and serious procedural violations (see R 1/08 [2.1] and the documents concerning the travaux préparatoires cited therein). Document CA/PL 17/00 makes clear in its paragraphs 13 to 20 that two existing judicial bodies have been considered as possible alternatives for dealing with petitions for request, i.e. the Boards of appeal or the EBA. The explanations contained in the basic proposition for the revision of the EPC (document CA/PL 25/00) concerning the actual A 22, which governs the composition of the EBA both for proceedings under A 122 and for proceedings under A 112a, are also to be taken into account. From this it follows that the legislator has intentionally taken the decision to entrust the handling of petitions for review to the EBA as a body existing at that time and having appointed members, being fully aware of the fact that most of these members are also experienced members of TBA or the LBA. [5]

It also follows that the legislator has intentionally taken the decision not to use the EBA in the only composition that existed at that time, i.e. a seven-member composition (see paragraph 17 of document CA/PL 17/00) but in a composition comprising two legally qualified members and one technically qualified member, for the “filtering” assessment whether the petition for review was clearly inadmissible or unallowable, or in a composition comprising four legally qualified members and one technically qualified member, for the full examination of the petition for review (see paragraphs 19 and 20 of document CA/PL 17/00 and paragraph 4 of document CA/PL 25/00). As at the time of the legislative proceedings many legally qualified and all technically qualified members of the EBA also were members of the TBA or of the LBA, the intention of the legislator can only have been to use these members also in proceedings under A 112a. It also becomes clear that the provision that is now found in R 109(2), which the petitioner considers to be in contradiction with the articles of the EPC, has arisen at the same time as A 112a itself. [6]

Even if one considers the proceedings for the handling of petitions for review to be insufficient, as does the petitioner, these proceedings correspond to the structure provided by the legislator. It is unambiguous to the Board that the legislator, by entrusting the handling of petitions for review to members of the TBA and the LBA in their quality of members of the EBA, has expressed its intention that this double function on its own is not a reason for the exclusion or objection of such members carrying out this task. It cannot possibly have been the intention of the legislator to create a judicial system for the handling of petitions for review the functioning of which could be undermined or even prevented from the start via A 24. Therefore, the facts and arguments filed by the petitioner cannot support the objection; the objection has to be dismissed as inadmissible. [7] 

To read the whole decision (in German), click here.