EPO overhauls videoconf legality board amid bias row
The European Patent Office (EPO) has confirmed that the livestream review into the legality of mandatory hearings by video conference is now open for registrations after it controversially dismissed two board members over impartiality concerns.
The hearing will take place this week on Friday May 28, after EPO was forced to recompose the board scheduled to hear the case following criticism over the presence of Carl Josefsson, president of the boards of appeal unit and chairman of the Enlarged Board of Appeal (EBA).
Back in November, the EPO announced that oral proceedings by video conference before its boards of appeal would become mandatory even without the consent of all affected parties, according to a new rule of procedure, Article 15a.
In February, a question over the legality of this position was referred to the EBA after it was raised during a patent dispute hearing.
The EBA decides on points of law of fundamental importance raised by a board of appeal or by the EPO president. While the party, Rohde & Schwartz, who issued the referral request later withdrew it, the EPO technical board of appeal confirmed in March that it would continue with the referral.
The referral, known as G1/21, asks whether Article 15a RPBA is compatible with the right to oral proceedings embodied in Article 116(1) EPC and has attracted almost 50 amicus curiae, including submissions from patent associations, multinational companies including Philip Morris and Siemens, and several patent attorney firms.
Personal interests
According to Article 24 EPC, members of the boards of appeal or EBA may not take part in a case in which they have any personal interest in the decision. This presence of Josefsson drew concern due to his involvement in all stages of the preparation and submission for approval to the EPO Administrative Council of Article 15a.
Critics such as the European Patent Institute and the European Patent Litigator’s Association (EPLIT) held that Josefsson “steered the practice of the boards in the direction of appointing hearings by video conference without the consent of the parties, by communicating to the public that this practice could be applied even before the approval of new Article 15a RPBa by the administrative council”.
On May 20, the board confirmed in an interlocutory decision that it had replaced Josefsson, by Fritz Blumer and that it would also exclude Ingo Beckedor, who served as task coordinator of the working group that prepared the controversial legislation.
A highly awaited decision
Speaking to WIPR, Leythem Wall, president of EPLIT, said: “G1/21 is one of the most highly awaited decisions in recent history of the EPO. The replacement of the president of the boards of appeal as chairman of the ruling panel was therefore necessary, and the minimum step that needed to be taken to mitigate any perception of partiality of the EBA.
“While EPLIT has no concerns about the competence and personal integrity of Carl Josefsson, he was directly involved in the drafting and introduction of Rule 15(a) RPBA.”
In a blog posted by law firm Redie & Grose, partner Steve Howe noted that the EBA particularly found that “the concern that the chairman might have a bias towards answering the referred question in the positive in order to avoid the outcome that his own acts were not in compliance with Article 116 EPC, is therefore objectively justified.”
The EBA also found that Beckedor should be removed as “there may exist in the public eye an objectively justified concern that he, like the chairman, might be biased towards answering the referred question positively”.
While the board had also received objections to the presence of Gunnar Eliasson and Andrea Ritza due to their advisory role as members of the Presidium (the body within the boards of appeal that advises the president of the boards of appeal on amendments), the board decided not to remove them.
As Howe noted: “the Presidium was not asked to give an opinion, positive or negative, on Article 15a RPBA. The EBA therefore rejected the request for replacement of G Eliasson, and A Ritzka”.
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