Can the author of an amicus curiae brief addressed to the Enlarged Board of Appeal (EBA) of the European Patent Office (EPO) challenge the impartiality of the Board or of one of its members?
On April 26, 2009, Mr M. Schulz submitted a letter via e-mail to the EBA with various comments on the proceedings in the matter of G 0003/08 - Referral by the President of the EPO in relation to a point of
law pursuant to Article 112(1)(b) EPC - patentability of computer-implemented inventions. Arguing that a particular member of the EBA, Mr Rees, had somehow - in discharging his professional duties - been involved before the submission of the referral by Ms Brimelow in various activities related to the patenting of computer-implemented inventions, he challenged the impartiality of the entire Board, demanding dissolution thereof.
In view of the fact that Mr Schulz merely had written a letter as part of the general public invited to provide comments on the subject-matter of G 0003/08 - he clearly was not party to the proceedings - it might not have come as a surprise if the EPA had disposed Mr Schulz' challenging of impartiality directly to the waste-bin.
However, the Board decided to be very cautious. In their Interlocutory Decision dated October 16, 2009, they provided a meticulous analysis. At first, after due deliberation of the Board, in the absence of the member concerned, the Chairman of the Enlarged Board of Appeal by order dated 28 September 2009 appointed Mr Alting van Geusau as alternate to Mr Rees for the purpose of the proceedings. At the end of the day their reasoning was as follows:
"As provided by Article 24(3) EPC, members of a Board of Appeal or of the Enlarged Board of Appeal may be objected to by any party for one of the reasons mentioned in Article 24(1) EPC, or if suspected of partiality. Whereas objections based on Article 24(1) EPC (iudex inhabilis) may be raised by anyone, whether he is a party or not, the right to object to a member of the Board because of alleged partiality (iudex suspectus) is reserved to parties in the proceedings (see interlocutory decision of 15 June 2009 in case G 2/08, point 1.4 of the Reasons). In referral cases under Article 112 EPC, however, members of the public who file amicus curiae briefs do not have the status of a party. They are not entitled to file requests but only to submit their personal view of the case or that of their organisations, in order to support the Board with arguments that should be considered in its findings. Since an amicus curiae is not a party to the referral proceedings his request for exclusion of a member of the Enlarged Board or of the Enlarged Board as a whole is inadmissible under Article 24(3) EPC.
However, pursuant to Rule 4(1) of the Rules of Procedure of the Enlarged Board of Appeal (RPEBA) in the version approved by the Administrative Council of the EPO on 7 December 2006 (OJ 2007, 304), the procedure of Article 24(4) EPC is also to be applied, if the Enlarged Board of Appeal has knowledge of a possible reason for exclusion or objection which does not originate from a member himself or from any party to the proceedings. Under this provision the submissions of a third party with respect to a member of the Enlarged Board to be objected to according to Article 24(1) EPC or suspected of partiality under Article 24(3) EPC are taken as information on the basis of which the Board can ex officio look at the alleged grounds of objection or suspicion of partiality."
All this did not help Mr Schulz. Stressing that a judge, once lawfully appointed, is deemed to act in good faith and is therefore presumed impartial until proven otherwise, this Board saw no reason to exclude Mr Rees from its composition in case G 3/08 or to replace further members.
Share this Article on LinkedIn
