6. Besorgnis der Befangenheit von Mitgliedern der Großen Beschwerdekammer

Zusammenfassung

Interlocutory decision R 4/24 of 19 August 2024 concerned a petition for review against decision T 116/18 of Board 3.3.02 of 28 July 2023. In T 116/18 of 11 October 2021, a referral had been made under Art. 112 EPC to the Enlarged Board, resulting in decision G 2/21, which was then applied in T 116/18 of 28 July 2023.

The petitioner raised an objection of suspected partiality under Art. 24 EPC against the Chair in the petition for review case R 4/24, on the basis that he had also been the Chair of the Enlarged Board in G 2/21. The petitioner acknowledged that the Chair in both G 2/21 and R 4/24 did not participate in decision T 116/18 and was not Chair of Board 3.3.02.

Nevertheless, the petitioner argued that G 2/21 and T 116/18 were: "[...] inextricably related by virtue of Art. 112(3) EPC and well-known by the European patent community to be so…". It further submitted that "it would be unfortunate, if not undesirable, for a member of the Enlarged Board who participated in the Enlarged Board decision now to participate in deciding whether or not that decision was implemented with fundamental procedural fairness in the decision under review."

The petitioner further argued that the present case might fall under the "or for any other reason" clause of Art. 24(2) EPC.

The objection was found to be admissible by the original composition of the Enlarged Board, an alternate Chair was appointed, and the Enlarged Board decided upon the objection of suspected partiality in this altered composition.

The Enlarged Board summarised the principles developed by the Enlarged Board and the Boards of Appeal for the application of Art. 24 EPC (see point 1 of the Reasons and as referred to by the Enlarged Board, G 1/21 of 17 May 2021 and also Case Law of the Boards of Appeal, 10th ed. 2022, III.J.1. "General principles").

The Enlarged Board in its alternate composition found that the Chair of the Enlarged Board in R 4/24 in its original composition had not participated in the decision that was the subject of the petition for review (T 116/18 of 23 July 2023) and was therefore not excluded under Art. 2(6), second sentence, RPEBA, from acting as Chair in case R 4/24. It acknowledged that G 2/21 was binding for the decision under review, but pointed out that a decision by the Enlarged Board under Art. 112 EPC and the following final decision by the referring board were separate decisions. Further, under Art. 112 EPC, the Enlarged Board in "G"-cases answers questions of law, and the application of the law in question to the facts of the appeal case rests exclusively with the competent board of appeal. Against this background, the Enlarged Board was of the view that participating in decision G 2/21 did not exclude the objected to Chair from taking part in R 4/24. Moreover, it saw no other reasons, whether or not mentioned in Art. 24(1) EPC, for excluding the Chair from R 4/24.

As to the petitioner's argument that the present case might fall under the "or for any other reason" clause of Art. 24(2) EPC, the Enlarged Board was also not convinced. Art. 24(2) EPC provides for a member themselves to put forward a reason for their exclusion, which had not happened in the case in hand. Rather the Chair was of the view that there was no such reason, as submitted in comments under Art. 24(4) EPC.

In conclusion, the Enlarged Board found that the objection against the Chair in R 4/24 in its original composition to be unfounded and that he could continue to participate in case R 4/24 as Chair.