T 1677/11 – Bad Timing

Objections under A 24 other than self-recusations are hardly ever successful. Most of the time the Boards find the allegations of partiality to be unpersuasive. In the present case, where the whole Board (!) was being objected to, the objection was rejected on another ground.

[3] Partiality objections were raised by [opponents] 1, 3, 4 and 6 against all board members under A 24(3) EPC. It was argued that, since the substantively identical parallel appeal case T 1760/11 had been decided by a board in identical composition one week previously, the present board would not bring an open mind to the present appeal.

As a first step, it is to be decided by the present board whether the said objections are admissible (cf. decision T 1028/96 [1]).

According to A 24(3), second sentence, “an objection shall not be admissible if, while being aware of a reason for objection, the party has taken a procedural step”. The principle underlying this provision is that an objection should be “raised immediately after the party concerned has become aware of the reason for the objection”, since “otherwise, the system could be open to abuse” (see decision G 5/91 [4]).

In the present case, the statement of grounds of appeal dated 22 November 2011 already contained a reference to the parallel appeal concerning to the closely related patent EP 1 020 461 […]. In addition, present [opponents] 3, 4 and 6 were also [opponents] in the corresponding appeal case T 1760/11 (as [opponents] 2, 7 and 13, respectively), and although [opponent] 1 was not a party in appeal T 1760/11, its representative was the same as that acting for [opponent] 6. Therefore, [opponents] 1, 3, 4 and 6 would have been aware of the closely related parallel appeal T 1760/11 right from the beginning of the present appeal proceedings.

A communication of the board was sent on 19 December 2011 granting the request for accelerated processing of the appeal, and informing the parties that the board then envisaged issuing an invitation to oral proceedings (OPs) by August 2012 to attend OPs from 27 to 29 November 2012 [...]. On the same day, an identically worded communication was sent out in appeal case T 1760/11, except that the date foreseen for OPs was stated to be 13 to 15 November 2012. Both communications were signed by the same rapporteur.

At this stage in the proceeding, present [opponents] 1, 3, 4 and 6 would therefore have been aware that the boards had been constituted in both cases, that the rapporteur was the same, and that appeal T 1760/11 was likely to be decided prior to the present appeal. Moreover, the information would have been readily available by online file inspection (entry from 20 October 2011) that the boards were identical in both cases, as foreseen in Article 7 of the business distribution scheme, which stipulates that, where appeals pending before the board are closely linked, in particular by involving similar legal or factual questions, the chairman may order that the board decides in the same composition (see Supplement to OJ EPO 1/2012, 12 to 25).

Replies to the statement of grounds of appeal were inter alia received from [opponents] 1, 3 and 6, but not from [opponent] 4 […]. However, it is to be noted that [opponent] 4 did file a response in case T 1760/11 (as [opponent] 7), as did [opponents] 3 and 6 (as [opponents] 2, and 13, respectively). No concerns were voiced by said parties in either case with respect to the identical compositions of the boards.

Thereafter, summons were sent out on 6 July 2012 to attend OPs on 27 to 29 November 2012, as previously announced. Corresponding summons were sent out on the same day in appeal case T 1760/11 to attend OPs on 13 to 16 November 2012. The board’s composition appearing on the these summons was identical in both cases and had not changed with respect to that previously available by online file inspection.

These summons therefore provided confirmation to the parties that the boards were to be identically constituted in both cases and that OPs for T 1760/11 would take place two weeks prior to those for T 1677/11. Again no concerns were voiced by any of the parties in this respect, and the representatives of present [opponents] 1, 3, 4 and 6 all attended the OPs in case T 1760/11 from 13 to 16 November 2012.

It was only after an adverse decision in that case had been announced that said [opponents] raised their objections of suspected partiality in the present case. However, as outlined above, the reasons for said objections, namely, the close link between the cases and the identical compositions of the boards, had been known to the parties long before the date of the first OPs. Therefore, regardless of whether the [opponents], notably [opponent] 4, took a specific procedural step in the present appeal proceedings, it is undoubtedly the case that they did not submit their objection immediately after becoming aware of the reasons therefore. Moreover, in view of the fact that the objections raised are linked to both appeals, attendance of OPs for T 1760/11 must be regarded as a procedural step within the factual context of the present case, in the sense of A 24(3).

Consequently, in view of their timing, the objections under A 24(3) are rejected as inadmissible.

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