Friday, 5 October 2012

R 2/12 – Nodding Not Required

To my best knowledge, this is the first case where an objection of partiality was raised against a member of the Enlarged Board (EBA) in petition for review proceedings.

This is a petition of review by the patent proprietor after Board 3.2.07 had set aside the decision of the Opposition Division rejecting the oppositions and had revoked the opposed patent (decision T 1022/09, an aspect of which was discussed in a previous post- here)

After the EBA had informed the parties of its preliminary view on the issues raised in the petition and its provisional conclusion that the petition was clearly inadmissible and unallowable, the petitioner objected to the rapporteur as member of the EBA on the ground of suspected partiality according to A 24(3).

In the reasons for the objection it was submitted that the preliminary view expressed and drafted by the rapporteur raised serious concerns about her impartiality. As she ignored essential arguments and took disputed assessments of the Board of Appeal as granted, it seemed that she-had already made up her mind to dismiss the request without even waiting for the result of the scheduled oral proceedings. Crucial arguments in support of the petition were either ignored or rejected without giving any reasoning that would allow the petitioner to counter the preliminary view of the EBA. Moreover, the rapporteur indicated that the proceedings could be expected as only being “very close” to a fair trial, this being an indication that she does not guarantee a fair trial to the petitioner. In support, a detailed analysis of several passages and sections of the communication was presented.

After due deliberation of the Board in the absence of the member concerned, the Chairman of the EBA an alternate member for the purpose of the proceedings under Article 4 RPEBA and A 24(4).

In her comments the member concerned assured that she had and still has no personal interest whatsoever in the case, nor any personal resentment against the petitioner or its representative(s) . The preliminary study was based on facts and only on the facts of the case. She also asserted that the communication had been drafted, in compliance with Article 5(3) RPBA, under the direction of the chairman of the Board.

[1] The objection of suspected impartiality (iudex suspectus) is derived exclusively from the text of the communication by which the petitioner was informed, in preparation of the oral proceedings, of the Board’s preliminary view on the petition. The petition does not rely on any other circumstances or evidence and there is no indication of any in the comments of the member concerned or elsewhere. There is then no reason for further investigations or considerations in view of Article 4(1) RPEBA (see decision G 2/08 [2.1]) and no facts exist, which as such would allow a neutral and informed person to conclude that it might have good reasons to suspect the partiality of the member concerned (“objective test in abstracto” - see G 2/08 [4]).

[2] It remains then to be examined, whether or not the preliminary opinion in question, because of its substance or by the way it was expressed, allows such a conclusion in concreto, i.e. the presence of a factual impartiality of which the member concerned itself might be unaware and the cause of which need not be known.

[2.1] The suspicion of a subjective impartiality must be justified on an objective basis, i.e. it must be established based on objective indications, a duly established judge being deemed to act in good faith and therefore presumed impartial until proven otherwise (see decisions of the ECHR referred to in G 2/08 [3.2]). Purely subjective impressions or vague suspicions are not enough.

The question is whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the judge has not or will not bring an impartial mind to bear on the adjudication of the case. It is thus necessary that a reasonable onlooker considering the circumstances of the case would conclude that the party might have good reasons to doubt the impartiality of the member objected to (G 1/05 [20] with reference to further case law).

[2.2] Applying these criteria, the Board in the present composition cannot identify in the communication in question any reason justifying a suspicion of partiality or a preconceived mind of the member concerned, more specifically any objective indication that this member would vote against the petitioner, irrespective of the further written and oral submissions of the latter. The conclusions on admissibility and allowability of the petition as drawn in the communication are as provisional as the underlying comments which were not intended to be complete nor final; rather they have been communicated pursuant to Article 13 (as “a possible appreciation of substantive or legal matters”) and 14(2) RPEBA which stipulates :
“The Board’s communication under Article 13 may draw attention to matters which seem to be of special significance, … or may contain other observations that may help concentration on essentials during oral proceedings”.
The provisional character of the Board’s preliminary view of the case, in particular that the Board is not in any way bound by it (Article 13 RPEBA), is expressly stated at the beginning of the communication which itself does not contain any bold contention, nor has been substantiated in “such outspoken, extreme or unbalanced terms” that it would preclude the capacity of the member concerned from dealing with the pending petition with an open mind and without preconceived thoughts.

[3] The Board notes in this context – without dealing in any way with the merits of the communication or of the petitioner’s comments on it – that the latter put forward an interpretation of selected parts of the text of the communication which, to say the least, is not the only possible or reasonable one.

The Board observes further that it would be incompatible with an objective assessment of a case and with the principle of fair trial in inter partes proceedings, if members of the Boards of Appeal could be “deposed” on the ground that they did not opine in favour of a particular party right from the beginning of the proceedings. In effect, the present request, if allowed, would amount to just that.

[4] There is thus nothing in the communication in accordance with Articles 13 and 14(2) RPEBA dated 20 July 2012 and nothing else has come to light which could justify any suspicion of partiality against the member who drafted that communication as the then rapporteur, who thus has to remain a member of the EBA in the case under consideration. […]

The petitioner’s request under A 24(3) is rejected.

What else? as George Clooney might have added.

The file wrapper and the decision can be found here.