T 1627b/09 - After successful petition

Key points

• This is a second decision in this case, after the successful petition for Review R2/14 setting aside the first decision T 1627/09 of 10 October 2013 dismissing the patentee's appeal against the OD's decision revoking the patent (of 14.06.2009), mention of the grant of 14.02.2017.
• In R 2/14 (decision issued 29.06.2016), the Enlarged Board had held (after finding a violation of Art. 113(1) EPC), that  "No request for replacement of the members of the board under Rule 108(3), second sentence, EPC has been made by the petitioner, nor does the Enlarged Board see any reason to deviate from the general principle that the proceedings are re-opened before the board of appeal responsible under the business distribution scheme".
• The two Board members taking part in the decision of 10 October 2013 and still being in function, now gave a notice of self-recusation. "They held that, if they remained as members of the board, they would have to decide for a second time on the same issues. In order to avoid a potential perception of bias, they requested to step out of the board and to be replaced by their alternates." These notices are not part of the public file, but seem to be given in November 2017. 
• The Board, in alternate composition, accepts the notices of self-recusation and decides that the chair and legal member are replaced by their alternates.
• " For a notice of self-recusation under Article 24(2) EPC to be accepted, it is therefore not necessary - as is the case for objections raised under Article 24(3) EPC, first sentence - to establish an actual partiality. It is sufficient that an appearance of partiality is at least arguable in the circumstances of the case" 

T 1627b/09 - link

Reasons for the Decision

1. Members of a board of appeal may not take part in a case in which they have any personal interest, or if they have previously been involved as representatives of one of the parties, or if they participated in the decision under appeal (Article 24(1) EPC). If, for one of these reasons, or for any other reason, a member of a Board of Appeal considers that he/she should not take part in an appeal, he/she shall inform the Board accordingly (Article 24(2) EPC).

2. In view of the notices of self-recusation of the chair and the legal member who formed part of the board in decision T 1627/09 of 10 October 2013, the present board, in which the members concerned have been replaced by their alternates, has to decide on the action to be taken (Article 24(4) EPC).

3. According to the jurisprudence of the Boards of Appeal, notices of self-recusation by board members do not automatically effectuate their exclusion from the proceedings, but only initiate the procedure under Article 24(4) EPC, without pre-empting the outcome of the decision to be taken. In a decision on the members' replacement, the grounds given in the notices of self-recusation, which may by their nature constitute possible grounds for an objection of partiality, should normally be respected, as only a very strict observance of the requirement of impartiality can be considered in line with the Boards' judicial function as last instance within the European patent system. There should be no remaining real possibility of a party or the public suspecting bias after a decision by a board (cf. decisions G 1/05, OJ EPO 2007, 362, points 2 and 7; J 15/04 of 30 May 2006, points 12 and 13; T 584/09 of 1 March 2013, point 7; and R 2/15 of 21 October 2015, points 3 and 4).

4. The Boards' jurisprudence in this respect is in accordance with Article 6(1) of the European Convention on Human Rights (ECHR) and Article 47(2) of the Charter of Fundamental Righs of the European Union (CFR), both recognised as binding standards for proceedings before the boards, as they are expressing principles of procedural law generally recognised in the Contracting States of the European Patent Organisation (EPO) (see Article 125 EPC and decisions D 11/91, OJ EPO 1995, 721, point 3.3; G 1/05, supra; G 2/08, OJ EPO 2010, 456, point 3; R 19/12 of 25 April 2014, points 8 to 10; R 8/13 of 20 March 2015, point 2; R 2/14, supra, point 5). For that reason, the case law of national courts in the EPO Contracting States, as well as the case law of the European Court of Human Rights, may serve as supplementary sources of interpretation of the EPC (cf., inter alia, R 19/12, supra, point 9).

5. According to the case law of the European Court of Human Rights on Article 6(1) ECHR, only under very exceptional circumstances a notice of self-recusation shall not lead to a replacement (cf., inter alia, European Court of Human Rights, Rudnichenko v. Ukraine, no. 2775/07, paragraph 113 to 119; along the same lines cf., as an example for national case law in the EPO Contracting States, Austrian Supreme Court 4 Ob 186/11y EFSlg 131.987).

6. For a notice of self-recusation under Article 24(2) EPC to be accepted, it is therefore not necessary - as is the case for objections raised under Article 24(3) EPC, first sentence - to establish an actual partiality. It is sufficient that an appearance of partiality is at least arguable in the circumstances of the case (see G 1/05, supra, point 19; R 2/15, supra, point 5 with reference to European Court of Human Rights, Micallef v. Malta, no. 17056/06, paragraph 98).

7. In the present case, no particular concerns as to the impartiality of the board members have arisen or had been voiced by the parties before. At the same time, it is at least arguable that an independent observer might objectively conclude that such bias could exist (e.g. see decision T 584/09, supra, where - as in the present case - appeal proceedings had been re-opened upon a petition for review and board members were then replaced upon self-recusation, with the board there arguing that such replacement had been justified to avoid any perception of bias on the members' side).

8. As there are no exceptional circumstances that could lead to a different conclusion, the notices of self-recusation are to be accepted.

Order

For these reasons it is decided that:

The chair and the legal member of board 3.3.08 are to be replaced by their alternates.