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As reported here and here, a referral was made to the Enlarged Board of Appeal (EBA) concerning the legality of holding oral proceedings by video conference without the consent of the parties. The case is proceeding before the Enlarged Board of Appeal as G1/21, and the hearing will take place on 28 May 2021 by video conference.
On 17 May 2021, 11 days before the hearing, the EBA published a decision regarding a change to the composition of the EBA panel dealing with G1/21. The published order shows the new composition of the EBA panel, i.e. that the Chairman and a legally qualified member have been replaced.
The change in composition was in response to an objection raised by the appellant (opponent) on 27 April 2021 under Article 24(3) EPC on the grounds of suspected partiality of the Chairman and two other members of the panel (referred to as “X” and “Y” in the decision). A fourth member (referred to as “Z” in the decision) requested under Article 24(2) EPC that the EBA also consider whether he should continue to be involved in G1/21.
For the purposes of deciding whether the above four members of the EBA panel should continue to participate in G1/21, the EBA panel was recomposed to replace the above four members. The particular question the recomposed EBA panel needed to answer for each of the four members was whether “a reasonable, objective and informed person” would reasonably be concerned that the member “had not or would not bring an impartial mind to bear on the adjudication of the case.”
The decision for each member appeared to turn on the extent to which that member was involved with the preparation and enactment of Article 15a of the Rules of Procedure of the Boards of Appeal (RPBA), which allows Boards of Appeal to hold oral proceedings by video conference “either upon request by a party or of its own motion”. The EBA noted at Reason 15 that new Article 15a RPBA seems to be based on the view that it is compatible with Article 116 EPC:
“the referred question in G 1/21 and Article 15a RPBA indeed deal with the same topic, namely the legality of holding oral proceedings by videoconference without consent of all the parties. Where the referral seeks an answer to the question whether this practice is compatible with 116 EPC, Article 15a RPBA seems to be based on the view that it is compatible with Article 116 EPC.”
The EBA considered the respective roles of the Chairman, X, Y and Z in the process by which Article 15a RPBA was introduced, and whether those roles might result in the EBA member in question being biased towards a particular outcome.
The Chairman, as President of the Boards of Appeal, was involved in the preparation and enactment of Article 15a RPBA. As set out in Reason 17, the EBA concluded that the Chairman:
“…has performed legislative and managerial acts based on the view that oral proceedings by videoconference without consent of all the parties are compatible with Article 116 EPC. If the Enlarged Board gave a negative answer to the referred question, this would mean that the above mentioned acts would lack a legal basis and would contravene the EPC. It is these acts that in the view of the Enlarged Board would lead a reasonable, objective and informed person to conclude that he or she has good reasons to doubt the impartiality of Chairman in this case. 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.” (emphasis added)
Thus, the EBA found the objection regarding the Chairman to be justified, and he has been replaced.
The appellant’s objections regarding two other members of the panel (X and Y) were not found to be justified. The objection was based on their membership of the Presidium of the Boards of Appeal, which was consulted in relation to the proposal for new Article 15a RPBA. However, the EBA took the view at Reason 22 that “their membership of the Presidium and their participation in a consultative meeting where the proposal for the legislation at issue was discussed, is not enough to objectively justify the concern that the members in question are biased.” Thus, X and Y were not replaced.
The fourth member (Z) was involved in the preparation of Article 15a RPBA, and served as a member and task coordinator of the “Working group on VICO provision in RPBA”. The EBA concluded at Reason 27 that:
“… it would not inspire confidence in the impartiality of the Enlarged Board if Z would also be part of the panel that decides on the compatibility of oral proceedings by videoconference without consent of the parties with Article 116 EPC. 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, because answering the question negatively would imply that he has been actively involved in the preparation of a proposal that is not compatible with Article 116 EPC.” (emphasis added)
Thus, the EBA concluded that Z should not take part, and consequently this member of the panel has also been replaced.
As well as the appellant, there have been numerous amicus curiae briefs raising concerns about the impartiality of various EBA panel members. It is clear that the EBA are hoping that this change in composition of the EBA panel will help reassure the parties to the proceedings, and the wider public, that the legality of holding oral proceedings by video conference without the consent of the parties will be assessed impartially.