Judicial partiality? Just try proving it ...

Note: this item has been amended in the light of information received subsequent to its original posting.

How easy is it to dispose of a European Patent Office Extended Board of Appeal member on the ground of partiality? The 17-page decision of 15 June on an application to do just that, in case G-2/08, has just been posted today on the EPO website. You can read it in English here. G-2/08 was an application by Bird & Bird on behalf of Actavis to remove an Extended Board of Appeal member:

"In support of this request they submitted that said permanent member of the Enlarged Board of Appeal was Chair of Board of Appeal ... that decided case ....

They considered this decision to be exceptional in that it not only undertook a full review of the previous Board of Appeal decisions which had construed G 5/83 narrowly but also considered the policy reasons for construing Article 52(4) EPC broadly and reviewed certain decisions of the national courts .... In concluding that the claim in issue was allowable on the basis of a broad interpretation of G 5/83, that Board of Appeal had declined to follow earlier Board of Appeal decisions and had not considered that a reference to the Enlarged Board of Appeal was required.

In view of this alleged exceptional way of dealing with the case they came to the conclusion that it might be very difficult for the member involved to approach the
legal questions to be decided in the referral in suit with an open mind, and that this would be seen to be the case by the parties interested in the outcome of said referral.
They requested pursuant to Article 24(3) EPC that ... not participate as a member of the Enlarged Board of Appeal for deciding the referral in this case, on the ground of suspicion of partiality" [omissions are in the EPO's decision itself, not provided by PatLit].

The Enlarged Board considered that the applicant had no locus to challenge the Board member, since it was not a party to the proceedings in question. Nor was the fact that it was a party to proceedings in a European Patent Convention member state which might be influenced by the outcome of G-2/08 a compelling reason for hearing the applicant's complaint, since decisions of the Enlarged Board were binding only in proceedings before the EPO. However, the Board was obliged to consider the issue of partiality if there should come into its knowledge any matter which would constitute even a possible reason for excluding a member. On that basis it was prepared to entertain the application, which it dismissed.

At the end of para 3.3 the Board affirmed down the basic principles:

"On the one hand Board members must duly discharge their duty to sit in cases allocated to them in accordance with their jurisdictions both "ratione legis" and "ratione materiae", and can neither withdraw at will from the proceedings, nor be objected to, at will, by a party to the proceedings, or by any other person.

On the other hand it is the duty of the member not to sit in proceedings in which his impartiality could be reasonably doubted, whatever his feelings might be. In decisions G 5/91 and G 1/05 the Enlarged Board of Appeal already underlined (point 3 of the reasons, and point 5 respectively) the importance of a very strict observance of the requirement of impartiality in proceedings before the Boards of Appeal and the
Enlarged Board of Appeal in view of their judicial functions at final instance within the European patent granting system. The Enlarged Board in its present composition accepts this statement and the conclusions already drawn in these previously cited decisions. It is a general principle of law that a member should not decide a case in which one may have good reason to assume or even suspect partiality".

However, in the Board's opinion, the merits of the allegations of partiality were unsupported by the facts. Board members are presumed to have acted impartially and in good faith unless the contrary is proved. Nor can partiality of an individual be assumed from the decision of a Board, which is the collective result of the decision-making processes in which three individuals participated. The Board concluded:

"It is sufficient to state that said decision does not contain any bold contention, nor has it been substantiated in "such outspoken, extreme or unbalanced terms" that it would preclude the capacity of the member concerned from dealing with the pending referral with an open mind and without preconceived thoughts.

Therefore there is nothing, whether "in concreto" or "in abstracto", in ...'s behaviour or in decision ... that could justify any suspicion against this member who therefore remains a member of the Enlarged Board of Appeal in the present case .... Order".