R 17/09 – Man In The Street

Board members have to be very cautious in the way they address parties, lest they be accused of partiality, as the present decision on a petition for review shows.

The applicant whose application for a revolutionary invention (published as WO 2004/114595) had been refused - and whose appeal was deemed not to have been filed because the appeal fee was not paid in time (decision T 1465/08) – filed a lengthy petition for review in which he raised inter alia an objection of partiality:

“ […] There are elements which can support the hypothesis of the existence of the requirements prescribed by the article 24(3). As concerns the representative’s work, the appellant could raise the same doubts, even if this is not relevant for the petition.

I. The appellant thinks that the Board changed the grounds of its decisions, after having received the letter dated July 20th. In this way, he contravened the art. 15.5 of rpba in order to support its grounds (see points 1.1 and 1.2 of the present document).

II. The Board seemed to know that this request of patent is linked to many multinational interests (see letter dated July 20th) even if no other multinational company has opposed this patent. As a matter of fact, in case of the issue of a patent, other multinational companies should pay the rights or to be sued for penal and civil reasons. The Board has defined the applicant as “the man in the street”. After they had used this expression too many times, the applicant highlighted the fact that his application was linked to the interests of many multinational companies. The Board members answered they knew it and then they stopped using the expression “man in the street”. On the appellant’s opinion, this reaction is very strange, and he could assume that the Board could have been affected by the principles of the art. 24(3) where the suspect about the Boards possible interests is sufficient in order to be judged in relation to the article. In fact, no multinational company opposed to the appellant’s patent. However, the appellant is already in touch with the representatives of several multinational companies which are using the idea and principles of this patent demand. Some multinational companies contested the validity of his Italian patent, already issued, and they said to be confident of EPO’s decision. However, the same multinational companies have not opposed to the Italian patent how it is legally demanded, and how the appellant told them to do. Other multinational companies, when the European application was just being carried out, they contested the validity of the patent request, on the basis of grounds not legally valid. For this reason, if the appellant’s European patent was accepted, they would be subjected to serious legal, civil and penal consequences. That’s why, it is possible to assume that the Board’s actions and decisions (violating several articles and rules of EPC) could be linked to those interests. […]”.

The Enlarged Board does not share this opinion:

[5] The first ground raised in the petition is under A 112a(2) (a), namely that members of the Board 3.5.03 took part in the case despite the provisions of A 24(3) in view of a suspicion that the Board’s actions and decisions could be linked to the interests of multinational companies opposed to the petitioner’s patent application.

The only evidence relied on for any such link is that Board 3.5.03 used the term “man in the street” of the petitioner. But this was in the context of Board 3.5.03 stating that it treated al1 parties equally. In English the term “man in the street” has no pejorative associations, but is commonly used to describe an average citizen. The Enlarged Board can see no support whatsoever for the allegation that members of Board 3.5.03 were influenced in their decision by any bias against the petitioner or any bias in favour of large multinational companies.

The petition thus cannot succeed on this ground. […]

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