Case No. Art. 23 1/16 ¦ Decision of the EBoA of the EPO of 14 June 2016 ¦ “Request for a proposal for removal from office”
The potential appearance of bias has already been the subject of a few decisions of the Swiss Federal Patent Court (FPC); see this Blog here, here and — very recently — here. But let’s put it into perspective: All this really is nothing compared to the struggles at the European Patent Office with respect to the independence of their Boards of Appeal (BoA). By far the most patents litigated in Switzerland are (Swiss parts of) European patents. It is thus in the very interest of Swiss practitioners that independence of the BoA of the EPO is beyond doubt. However, the present decision (already reported on IPKat) casts light on a further setback.
For the Enlarged Board to be able to continue with these proceedings the position of the Petitioner would have to be that it did not agree with the Office President and acknowledged that, from an institutional point of view, the pressure exercised by the Office President in the present case was incompatible with the judicial independence of the Enlarged Board guaranteed by the EPC. As the Petitioner did not clearly distance itself from the Office President‘s position, there is the threat of disciplinary measures against the members of the Enlarged Board. It is then the Enlarged Board’s judicial independence in deciding on this case which is fundamentally denied.
The present decision concerns a request of the Administrative Council (AC) under Article 23(1) EPC to make a proposal to remove the respondent from office. However, the Enlarged Board of Apppeal (EBoA) decided to make no such proposal. But this decision has not been taken in view of the merits of the case as such, but rather in view of a fundamental denial of the EBoA’s judicial independence. The members of the EBoA felt threatened with disciplinary measures and thus did not continue the proceedings at all.
What the heck is going on there?
As to the backround of the decision, it is important to understand that the President of the EPO, Benoît Battistelli (photo source: EPO), has directly approached the members of the Enlarged Board of Appeal (EBoA):
XXV. By a letter of 10 June 2016 the Office President, who is not foreseen as a party to these proceedings under Article 23(1) EPC and Article 12a RPEBA, wrote directly to the Chair of the Enlarged Board with copies to the other members of the Enlarged Board in its present composition.
The letter is titled “Office representation in the case Art. 23 1/16”. This letter stated:
“With due respect to the principle of independence of the Board of Appeals enshrined in Art. 23 EPC, by virtue of the powers under Art. 5(3) and 10(1)(2)(h)(i) EPC, I would like to bring to your attention certain concerns expressed in the attached position prepared by my legal counsels.”
XXVI. The attached document, an English QC’s [Queen’s Counsel] opinion, is entitled: “In the matter of a procedure in front of the Enlarged Board of Appeals”, “Position Statement for the President of the European Patent Office”. The following passages appear to be relevant for the proceedings:
“19. It will be recalled that the role of the EBoA under Article 23 EPC is to make a proposal on the removal from office, having regard to the fact that this sanction has been recommended by the DC [Disciplinary Committee of the AC] and endorsed by the AC. This article does not confer an appellate or investigative power, let alone a free standing and further fact finding mandate. The nature and extent of the evidence already available to the EBoA means that the attendance of these witnesses is not necessary for the Article 23(1) EPC proceedings to be conducted fairly and effectively.”
“21. It is quite inappropriate that a full re-hearing of the facts take place on 14-16 June; there are no vires in this forum to conduct an appeal process nor indeed to recommence an investigation; accordingly, the personal presence of any witnesses from the Office will not be required or authorised by the President.”
“23. With that in mind, the President will not, we are also instructed, hesitate to take appropriate steps available to him to orderly running of the Office and the safety of its employees.”
“27. In view, in particular, of the gravity of the reputational, security, welfare and public order risks identified, there is a strong case for saying that any decision to conduct this hearing in public would be unlawful because it could not be defended as either proportionate or reasonable.”
“28. For all these reasons, the President deems it necessary in the interests of the whole Organisation that there is an assurance that this matter will proceed in camera and that no witnesses will be called from the Office.”
The assessment of the EBoA is straight-forward:
9. The Respondent has raised the issue that the amendment of Article 95(3) ServRegs affects the independence of the members of the Enlarged Board because it permits any board member to be indefinitely suspended by a mere decision of the AC. This amounts to a de facto removal from office, since the suspension can be extended until the member’s five year term expires. Upon expiry of the five year term, re-appointment of the member in question can then simply be denied, without a proper Article 23(1) EPC proposal of the Enlarged Board. The Respondent has not, however, raised this issue as part of an objection under Article 24(3) EPC that is that the members of the Enlarged Board might be suspected of partiality by a party.
10. In the light of this the Enlarged Board considers that it has to address the issue under Article 4(1) RPEBA, that is whether any members of the Enlarged Board in its current composition consider that because of the amendments made to Article 95(3) ServRegs, they should not take part in this procedure as they no longer consider themselves to be impartial and independent in their decision making.
11. The Enlarged Board notes that the amendment to Article 95(3) ServRegs was decided upon by the AC in its December 2015 meeting, during the course of this series of proceedings. With this amendment it cannot be excluded that the suspension of the Respondent will continue to the end of his present five year term. The Enlarged Board further notes that this is possible because the period of suspension has been raised from 4 to 24 months specifically for board members, and it can now be extended by the AC in “exceptional cases”. A limit to this extension is not given, and no guidance as to what may constitute exceptional circumstances is provided.
12. This amendment of Article 95(3) ServRegs therefore gives the possibility, de facto, to the AC to remove a member of the Boards of Appeal from office without following the procedure in Article 23(1) EPC.
13. At the time this issue was raised in these proceedings, during the May 2016 oral proceedings, the members of the Enlarged Board, making their own individual assessment of their situation, considered that the threat to their judicial independence was a general, abstract threat that would be present in all cases before the boards, not just the present case. In fact, taking it as a reason to exclude oneself would necessarily imply that one could neither sit on any normal Board of Appeal case, nor on referrals, including petitions for review, to the Enlarged Board.
14. This situation has now changed as a consequence of the Office President’s letter of 10 June 2016 (see para XXV above, and para 36 to 47 below).
36. In his letter of 10 June 2016 (see quotations in point XXVI. above), the Office President expressed his view that the Enlarged Board’s decision to hold public oral proceedings was unlawful. He further elaborated that the Enlarged Board does not have the competence to determine the facts in these proceedings. Finally, he indicated that he would not hesitate to take any appropriate steps available to him to ensure the orderly running of the Office and the safety of its employees in respect of the present case.
37. The making of an unlawful decision is clearly misconduct. Hence the general, abstract threat to the independence of the Enlarged Board resulting from the amendment of Article 95(3) ServRegs (see para 8 to 13 above) has now crystallised as a result of the Office President’s procedurally irregular intervention in these proceedings.
38. As the present case has shown, the Office President assumes the power to investigate and to suspend members of the Boards of Appeal and bar them from the Office.
39. In addition, he may also propose any other disciplinary measures to the AC, pursuant to Article 10(2) (h) EPC.
40. Thus, in the presence of these facts, ascertainable by any objective observer, all present members of the Enlarged Board find themselves threatened with disciplinary measures if they continue with these proceedings in the presence of the public, and seek to determine the facts of this case. This undermines the fundamental principle of judicial independence as set out in Article 23(3) EPC. Thus the conditions of Article 23(3) EPC are not fulfilled, unless the AC as appointing and disciplinary authority for all members of the Enlarged Board, including its external members, distances itself from this position of the Office President.
41. After having been given time during the in camera conference held on 14 June 2016 to reflect upon this situation, the Chairman of the AC made the following remarks in writing concerning the Office President’s letter and enclosure of 10 June 2016:
“… Such a communication does not emanate from a party to the proceedings. In view of the fact that the Administrative Council is only represented in the proceedings pursuant to Article 12a(2) of the rules of procedure of the EBA, it cannot take position on a communication from the Executive Head of the Office.
In this respect, and as per Article 23 (3) EPC, the EBA members are not bound by any instruction but must abide by the provisions of the EPC. This cannot be prejudicial to them, bearing in mind that the Council is the sole competent disciplinary authority for them …”
42. The Petitioner in this case is the AC. The AC is the appointing and disciplinary authority for the Office President (the highest ranking appointee of the AC), as well as for the members of the Enlarged Board (the highest judicial authority of the EPO). The Petitioner thus has an institutional obligation to clarify whether it endorses or not the Office President’s position as set out in his letter of 10 June 2016 and referred to above.
43. For the Enlarged Board to be able to continue with these proceedings the position of the Petitioner would have to be that it did not agree with the Office President and acknowledged that, from an institutional point of view, the pressure exercised by the Office President in the present case was incompatible with the judicial independence of the Enlarged Board guaranteed by the EPC. As the Petitioner did not clearly distance itself from the Office President’s position, there is the threat of disciplinary measures against the members of the Enlarged Board. It is then the Enlarged Board’s judicial independence in deciding on this case which is fundamentally denied.
44. As can be derived from the statement of the Chairman of the AC, there was no clear and unequivocal declaration that the AC distanced itself from (or did not share) the Office President’s position. In such a situation, the Enlarged Board cannot legally continue with these proceedings. As a consequence it cannot make a proposal to the Petitioner to remove the Respondent from office.
45. Thus to summarise, the Enlarged Board was reduced to the following alternatives:
— either, to take an “unlawful decision”;
— or, to take a “lawful decision” according to the demands of the Office President, i.e. setting aside its decision on the public oral proceedings and taking as granted the facts established in the IU Report and/or the DC’s opinion.
46. In either case, the respective decision would be inherently vitiated because it would have been made under pressure from the executive and without the serenity and independence needed for a fair trial.
47. The intervention of the Office President, and this intervention alone, prevented the Enlarged Board from continuing the proceedings as had been planned (see above points XVI to XXI), from examining the case on its substantive merits as put forward by the Petitioner, and from establishing whether serious grounds for the removal from office of the Respondent existed in accordance with Article 23(1) EPC.
Frankly speaking, this further twist in the removal-from-office saga at the EPO leaves me in unbelieving astonishment. I remain keen to learn about the Office President‘s and/or the AC‘s reaction on this. If proof was needed that things cannot go on the way they are right now, this might be it.
Reported by Martin WILMING
Case No. Art. 23 1/16 ¦ Decision of the EBoA of the EPO of 14 June 2016 ¦ “Request for a proposal for removal from office”
Administrative Council of the European Patent Organisation ./. Respondent (n/a)
Composition of the EBoA:
- Marie-Bernadette TARDO-DINO (Chairman)
- Ele LIIV*
- Anna DIMITROVA*
- Ingo BECKEDORF
- David ROGERS
- Ulrich OSWALD
- Hugo MEINDERS
External, legally qualified members of the EBoA according to Art. 11(5) EPC are marked with an asterisk (*).
FULL TEXT OF THE DECISION