In the interlocutory decision R 19/12 dated 25 April 2014, the Enlarged Board of the European Patent Office (EPO) came to the conclusion that its chairman is suspected of partiality and has therefore been replaced. It can be expected that this decision will give rise to some turmoil within the EPO.
While the decision at first sight seems to be directed against the chairman, it actually is not. Instead, the decision is basically a criticism of the organizational structure in which the Enlarged Board of Appeal of the EPO is embedded. This Enlarged Board is presided by a chairman who almost always – although not prescribed by the European Patent Convention – also serves as a Vice-President of the EPO. According to Article 10 of the European Patent Convention, Vice-Presidents of the EPO shall assist the President. Currently, this assistance includes a participation of the Vice-Presidents in the so-called Management Committee of the President. Based on this linkage to the management of the Office, the referring party in this case objected to the chairman of the Enlarged Board arguing that the necessary independence of the judge-like position of the chairman was jeopardized.
The deciding Enlarged Board sat in a composition of three members without the objected chairman and gave a detailed analysis of partiality objections under the European Patent Convention, under national laws of Member States, and also under the European Convention on Human Rights. It then developed the following criterion for assessing a partiality objection:
“It is decisive whether a rational, objective and informed observer taking into account the circumstances of the case would conclude that the [objecting] party could for good reasons doubt the impartiality of the objected member [of the Board].”
In view of the objected chairman’s management duties which are discussed in detail in the decision, the Board believed that the mentioned observer would have concluded that the objecting party could for good reasons doubt the impartiality of the chairman. Accordingly, the chairman was replaced. Thus demonstrating that an objection as in this case can probably be raised in any review procedure under the European Patent Convention. Unfortunately, an untenable situation is likely to result. The decision in this case begs for a re-organization of the management and in particular of the participation of members of the Enlarged Board of Appeal in the management. Moreover, the Enlarged Board of Appeal obviously used this case to stress that the independence of the Boards of Appeal within the EPO is presently not sufficiently reflected and should enjoy further enhancement.