Patent Law – Replacement of the Chairman of the Enlarged Board of Appeal (EPO) due to Suspicion of Partiality (04/2014)


EPO’s opposition division found an opposition to be well founded and thus revoked the contested European patent. The Board of Appeal set aside this decision in the appeal instance and confirmed the patent’s validity to the extent of auxiliary claims filed by the patentee. The patentee was of the opinion that the opposition division had already infringed his right to be heard in the first instance proceedings and that the Board of Appeal did not sufficiently remedy this procedural misconduct in the second instance. He thus filed a petition for review of the decision by the Enlarged Board of Appeal. In addition, the patent proprietor objected the Enlarged Board of Appeal’s chairman due to an alleged suspicion of partiality.


Interim Decision on the Objection of the Chairman

In its interim decision of 25 April 2014, the Enlarged Board of Appeal confirmed an suspicion of partiality of its chairman and thus replaced him for the pending proceedings. The board did not call into question the chairman’s personal integrity. Rather, it detected a conflict with a view to the principle of division of powers.

In his function as vice president of the EPO’s Directorate-General 3 (responsible for the Boards of Appeal) and member of some administrative committees, the chairman is subjected to the EPO’s president’s power to direct and thus incorporated in EPO’s administrative hierarchy. On the other hand, as the chairman of the Enlarged Board of Appeal he shall impartially and independently keep watch over the legality of this very administration’s activities. In the Enlarged Board of Appeal’s view, this potential conflict of interests gave rise to a more or less general suspicion of partiality.


Practical Consequences and Comments

In view of the fact that the Enlarged Board of Appeal’s findings are more or less of general nature, it is hardly conceivable that its present chairman will be able to participate in any further proceedings on petitions against the Boards’ of Appeals decisions. The EPO’s general practice, that usually the vice president of Directorate-General 3 becomes elected chairman of the Enlarged Board of Appeal, will therefore most likely be changed in the near future.

Insiders assume that this new interim decision might have been triggered by an internal opposition against EPO’s president, whose striving for efficiency is subject to certain criticism. Particularly remarkable is the unprecedented strong and unambiguous wording criticizing the present linkage between administrative and judicial functions within the EPO system.