T 0355/13 - Partiality objection

EPO T 355/13 
Link

Key points

• The opponent was one of the inventors of the device disclosed in D4, which the prior art the opposition mainly relied on. The opponent appears to have acted pro se.
• The opponent raised a partiality objection against all members of the board. The board confirms that it can decide on admissibility of the objection without replacement of the objected members. The board rejects the objection as inadmissible.
• The opponent raised as objection that the rapporteur was not technically competent. However, the board notes that " there are no substantiated submissions on file explaining why the issue of "competence" of a member of the board is linked to the issue of "partiality", since lacking competence does not per se mean that the allegedly incompetent person is biased. "
• The opponent made various other unusual assertions about procedural violations.

Summary of Facts and Submissions

I. The opponent appealed against the decision of the opposition division to reject the opposition and to maintain European patent No. 1 127 497 unamended. The statement setting out the grounds of appeal was received on 20 March 2013.

VII. In a letter dated 16 January 2014, the appellant informed the board that he regarded the summons as void ("unwirksam") because it contravened his right to be heard (Article 113(1) EPC) and because the board disregarded Article 11 RPBA, and that he therefore suspected the rapporteur of partiality in the sense of Article 24(3) EPC.

He complained that
- no position was taken in the summons about the alleged procedural violation by the department of first instance,
- no reason was given as to why the case was not to be remitted to the department of first instance,
- the admissibility of documents D9 and D10 was questioned, and
- the rapporteur was lacking in fundamental technical knowledge.

XXVI. The written arguments of the appellant that are relevant for the present decision can be summarised as follows:

d) The opponent was one of the inventors of the device disclosed in D4 and had been in negotiations with Philips, the former owner of the contested patent, concerning the payment of a remuneration to the inventors. The negotiations failed and there was a noticeable coincidence between the deceptive behaviour of Philips and the extremely unusual and improper treatment of the case by the opposition division, which entirely neglected the right of the appellant to be heard.

Reasons for the Decision

1. The appeal is admissible.

2. Admissibility of the partiality objections against the members of the board (Article 24 EPC)(appellant's arguments f) to k) and m) to p))

2.1 Competence of the board in its original composition

The appellant submitted that, if an objection under Article 24(3) EPC is made by a party, then the procedure under Article 24(4) EPC automatically applies without it being necessary to consider whether this objection is admissible. Thus such objection should be examined by the board without the participation of the member objected to, who should be replaced by his alternate.

The present board cannot follow such reasoning:

Article 24(3) EPC, second and third sentences, provides that an "objection shall not be admissible if, while being aware of a reason for objection, the party has taken a procedural step" and an "objection may not be based upon the nationality of members". These provisions clearly require a preliminary examination for admissibility.

Generally speaking, in the EPC, the purpose of the preliminary examination for admissibility is to determine whether the objection may go forward for substantive examination and decision. If the objection is not admissible, the board of appeal may not examine whether it is allowable or well founded. Insofar as the objections under Article 24 EPC are concerned, the issue of admissibility is a prerequisite for substantive examination. But this prerequisite, if satisfied, only leads to the opening of the procedure defined in Article 24(4) EPC: the member objected to is then replaced by his alternate and the board in this new composition decide on the allowability of the objections under Article 24 EPC.

This interpretation of Article 24(3) EPC was also shared by the Enlarged Board of Appeal in its interlocutory decision R 12/09 of 3 December 2009 (c.f. reasons for the decision, point 2) pointing out that the board in its original composition must first decide on the admissibility of an objection under Article 24(3) EPC in respect of a board member. The board has found nothing in interlocutory decision R 19/12 that would speak against following that procedure.

Thus, the appellant's submissions that the board committed a (substantial) procedural violation by not replacing the objected members of the board when taking any decision on the partiality objections raised, even on the issue of admissibility of those objections, are based on an incorrect interpretation of Article 24(3) EPC.

2.3 Admissibility of the objections under Article 24(3) EPC against the first member of the board

The objections under Article 24(3) EPC against the first (technical) member of the board (rapporteur) were raised in reaction to the annex to the summons to oral proceedings dated 5 December 2013, which were signed by that member. In that regard it is to be taken into account that forming an opinion is one of the important tasks of the board. Issuing of a preliminary opinion cannot per se be regarded as sufficient ground for an objection of suspected partiality. According to the appellant's allegations the specific content of the aforementioned annex supported the suspicion of partiality raised against the first member of the board. However, considering its content, it is immediately apparent that in all its parts it is clearly written as a merely preliminary, non-binding opinion of the responsible member of the board, so that none of the appellant's allegations is supported by the communication annexed to the summons. [...]Thus, the board came to the conclusion that the partiality objections against the first member of the board are not admissible.

[...]

In view of the fact that the appellant's partiality objection is based on a legally untenable interpretation of the purpose and functioning of the appeal proceedings, the right to be heard and the principle of a fair trial, it is rejected as inadmissible.

2.4.3 For the sake of completeness only it is noted that the appellant's various objections concerning the "competence" of the first member of the board are obviously founded on the appellant's untenable interpretation of the purpose and functioning of the appeal proceedings and the right to be heard as shown above. Furthermore, there are no substantiated submissions on file explaining why the issue of "competence" of a member of the board is linked to the issue of "partiality", since lacking competence does not per se mean that the allegedly incompetent person is biased. Consequently, the objection cannot be considered as an admissible partiality objection.