Monday, 11 February 2013

R 2/12 - A Case For An R

In this petition for review the question arose whether the petitioner had indeed raised a R 106 objection.

Board of appeal (BoA) 3.2.07 had dismissed several auxiliary requests. The representative expressed his surprise and said he had felt misled and that the refusal of the auxiliary requests was a matter for an “R-case”.

The representative pointed out that here was no other possible interpretation of this remark than as an objection under R 106. There had to be a willingness on the part of the judge to understand what a party meant. In addition, there was no rule in the EPC from which it could be concluded that the minutes of oral proceedings (OPs) were complete and that an objection had not been raised if it was not mentioned in the minutes. Indeed, the way in which the minutes were drafted, i.e., without their being read out at the end of the hearing, left the parties without any possibility to know their contents until the minutes were sent to parties. A party had no means to ensure that the BoA had understood it correctly.

You might have guessed that these arguments were not successful.

[1.2.1] A fair trial and fairness towards the parties imply legal certainty, which, in turn, implies predictability of the application of legal provisions. Regarding the fundamental principles underlying the petition for review it must be borne in mind that this procedure has been intended to be an exceptional means of redress against a decision which has become res judicata, so as to remedy intolerable deficiencies occurring in individual appeal proceedings (Preparatory document CA/PL 17/00, point II: “Main features of the Petition for Review”). In this respect the objection under R 106 has been considered, right from the entry into force of the petition for review procedure, to be an important procedural act, the significance of which must be immediately clear for the BoA, because it is also a means for rectification of the procedural defect, precisely to avoid the need to challenge a decision which is res judicata (see as examples R 4/08 [2]; R 17/10 [2] and R 1/10 [6]).

In the case in suit there is no trace or evidence of the statements allegedly made by the petitioner's representative during the OPs. The BoA rejected the request for correction of the minutes aimed at inserting the sentences claimed to have been pronounced and three opponents confirmed that they did not hear such remarks.

But even if for the sake of argument the Enlarged Board assumed that the representative mentioned that he felt misled and believed that it was a case for an “R-decision”, the subsequent disagreement about what was said or what was not said, and how what was said should have been interpreted, demonstrates how much the formal requirement of an objection under R 106 is justified.

In any event, the remarks, if made, were not in a form that the BoA could recognise them immediately and without doubt as an objection under R 106 (see R 4/08 [2.1]).

As a consequence, and bearing in mind the function of the petition for review, the petitioner's argument that in the course of OPs the dismissal of an objection by the Board may be expressed informally, for instance by a mere gesture from the Board's chairperson, without any record in the minutes of the attempt to object and the dismissal of the objection, are not relevant.

Just as unconvincing are the arguments that there is no legal presumption that the minutes are complete or that the parties have no means to check what the minutes contain: Not only when the chairperson confirms the final requests before closing the debate, but at any time when the Board is about to deliberate, (the risk of a final decision after deliberation being always present), it is the duty of a party to check whether its objection to a fundamental procedural defect occurring during the OPs has been recognised by the Board and will be dealt with. Even if the objection was raised earlier during the OPs, it is not, contrary to what the petitioner contended during the OPs before the Enlarged Board, comparable to an intermediate request, something which is not always reflected in the minutes: As stated in R 4/08 [2.1], an objection under R 106 is additional to and distinct from other statements. The point is not that the minutes do not reflect the whole OPs; the point is that, if a party is really convinced that a violation of its right to be heard has occurred during the OPs the subsequent objection must be clearly raised as such, and not as a mere aside, so that it will oblige the BoA to react, and require this to be recorded in the minutes in accordance with R 124, at least at a party's request. Failing that, if the procedural defect was apparent during the OPs, as in the present case, there is no way to escape from the conclusion of inadmissibility under R 106.

Should you wish to download the whole decision, just click here.

The file wrapper can be found here.


Anonymous said...

I have empathy for the representative before the Board, who, feeling himself wronged, must then rely on a magic phrase appearing in a document over the creation of which he has no control, to dispute the correctness of proceedings before the entity that produced that document. The representative, by rule, cannot himself produce reliable evidence of what happened at the proceedings as a consequence of the ban on recording devices, and so must rely on the bona fides of those he accuses of improper conduct. But how could the EBoA address the situation where a Board allows a substantial procedural violation or violates the right to be heard, interntionally or otherwise, and then seeks to avoid discovery of the error by selective reporting in the minutes. No human institution can claim to be free of such a possibility, yet in such an event there could be no redress as the EBoA's self-determined rules would prevent action being taken.

Let us then hope with our hearts that the BoA members non angli sed angeli sunt.

Myshkin said...

If a representative explicitly requests the recording in the minutes of a statement he makes, then a Division or Board will record that statement in the minutes.

In the present case, the representative had made no such request.

Anonymous said...

So, would the failure of a Division or a Board to record a statement, on request, in the minutes therefore be a substantial procedural violation? If so, how would such a violation be corrected? Perhaps you say that such a failure could never occur. I would hope that that could be the case. But "never" is a very strong word to use when dealing with people and institutions. So where is the safeguard against this type of violation, in the EBoA's test?

Myshkin said...

There's no safeguard to that. Once everybody is out to get you, they will get you.

In real life, you are dealing with professionals. A 3-person Division or Board will not fail to record a statement when explicitly requested to record it. They might have a different view on the law or on the facts, but they will not on purpose send you to the wrong room and quickly hold the OP in your absence.

As already noted, in R 2/12 such a request was not made.