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European Enlarged Board of Appeal Dismisses Claim that Pro-Software Patents Judges Are Biased

Posted in Database, Europe, Law, Oracle, Patents at 11:23 am by Dr. Roy Schestowitz

Software patents protest against EPO

Summary: Enlarged Board of Appeal to make decision regarding software patentability in Europe, but some judges may have already made up their minds

THE FFII’s president has just pointed out that the “European Patent Office “independent” Enlarged Board of Appeal says its judges are “independent”.” We append its response in plain text. Of course they would just act in self defence here, justifying their own integrity rather than relying on independent, external judgment. To quote the crux of the matter:

In an amicus curiae brief addressed to the Enlarged Board on 26 April 2009 Mr M. Schulz contested the impartiality of the Board giving the following reasons:
1. A technically qualified person in charge and mandated by the Enlarged Board of Appeal had officially and publicly given his opinion on the decisions mentioned in the referral of the President and on the interpretation of the EPC with respect to the exclusion of computer programs from patentability, among others on the decision in the case T 1173/97.

We previously wrote about this referral to the Enlarged Board of Appeal in:

I have also submitted my own brief.

Separately, says FFII’s president, “Oracle [is] not mentioning patents” when claiming that “because MySQL is open source, it cannot be controlled by anyone.” Oracle wrote this in response to the European Commission, which blocks the Sun takeover.

We wrote about MySQL and patents back in 2008 [1, 2, 3, 4, 5].


Europäisches     European        Office européen
Patentamt        Patent Office   des brevets
Große            Enlarged        Grande
Beschwerdekammer Board of Appeal Chambre de recours

 Internal distribution code:
 (A)  [ ]  Publication in OJ
 (B)  [X]  To Chairmen and Members
 (C)  [ ]  To Chairmen
 (D)  [ ]  No distribution
                  Datasheet for the Interlocutory Decision
                              of 16 October 2009
 Case Number:                          G 0003/08
 Language of the proceedings:          EN
 Referral by the President of the EPO in relation to a point of
 law pursuant to Article 112(1)(b) EPC
 Relevant legal provisions:
 EPC Art. 24
 RPBA Art. 4
 Relevant legal provisions (EPC 1973):
 EPC Art. 24
 "Objection to a member of the EBA, suspicion of partiality"
 Decisions cited:
 G 0001/05, G 0002/08, T 0954/98, J 0015/04
 [2002] EWCA Civ 90, [2003] QB 528 - Taylor v. Lawrence; [2003]
 UKHL 35, [2003] ICR 856 - Lawal v. Northern Spirit Ltd.;
 Locabail (UK) Ltd. v. Bayfield Properties Ltd.
 EPA Form 3030 06.03


Europäisches        European        Office européen
Patentamt           Patent Office   des brevets
Große               Enlarged        Grande
Beschwerdekammer    Board of Appeal Chambre de recours

  Case Number: G 0003/08
                I n t e r l o c u t o r y        D e c i s i o n
                       of the Enlarged Board of Appeal
                              of 16 October 2009
  Composition of the Board:
  Chairman:      P. Messerli
  Members:       M. J. Vogel
                 P. Alting Van Geusau
                 M. Dorn
                 A. G. Klein
                 U. Scharen
                 J.-P. Seitz
                              - 1 -                    G 0003/08
Summary of Facts and Submissions
I.      In the present referral case under Article 112(1)b EPC
        concerning several questions raised by the President of
        the EPO on Computer Implemented Inventions ("CII") the
        Enlarged Board of Appeal invited the public to file
        opinions on the questions submitted by the President.
II.     In an amicus curiae brief addressed to the Enlarged
        Board on 26 April 2009 Mr M. Schulz contested the
        impartiality of the Board giving the following reasons:
        1. A technically qualified person in charge and
        mandated by the Enlarged Board of Appeal had officially
        and publicly given his opinion on the decisions
        mentioned in the referral of the President and on the
        interpretation of the EPC with respect to the exclusion
        of computer programs from patentability, among others
        on the decision in the case T 1173/97.
        2. In the documents of the Diplomatic Conference of
        2000, the decision in the case T 1173/97 was considered
        to justify the deletion of the EPC provision excluding
        computer programs as non patentable subject matter.
        This means that this decision was not taken on the
        basis of the law in force at that time.
        3. Furthermore, the person mentioned above, now a
        member of the Enlarged Board in the present case,
        supported the EU-proposal of a directive on CII as a
        lobbyist of the Commission. He declared publicly that
        the then-drafted version of the EU-directive would not
        initiate a reversal of the jurisdiction of the Boards
        of Appeal. This is further proof that the then-valid
                              - 2 -                    G 0003/08
        law, which excluded computer programs from legal
        protection, had been disregarded by the Boards.
        4. Finally, just before its publication, a member of
        the Boards of Appeal publicly took the position that
        the referral of the President was inadmissible. This
        was an undue attempt to put pressure on the President
        and the Members of the Enlarged Board.
        5. On the strength of past experience with the
        behaviour of Board members the question is not whether
        there are different decisions and even whether these
        decisions are in line with the Convention. These
        questions have already been answered by the Boards'
        decisions. The question is rather whether it is
        possible having regard to the foregoing facts to
        compose an Enlarged Board from members of the Boards of
        Appeal, who have already been subject to a reproach of
        6. Under these conditions there is a suspicion of
        partiality with the consequence that the present
        composition of the Enlarged Board has to be dissolved
        and the grounds of dissolution have to be published.
III.    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 under Article 4
        RPEBA and Article 24(4) EPC.
IV.     In his statement according to Article 4(2) RPEBA
        Mr Rees declared that, as a director in DG 2 between
                              - 3 -                    G 0003/08
        2000 and 2003, he was assigned the duty of explaining
        the examination policy of DGs 1 and 2 with respect to
        computer-implemented inventions (CII), which was based
        on the case law of the Boards of Appeal, to the public
        and external bodies like the European Parliament.
        Furthermore he did the same when he attended as an
        expert for the European Commission a number of meetings
        of the responsible committee of the Council of
        Ministers where the proposal of a EU-directive on CII
        was discussed.
Reasons for the Decision
1.1     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
                              - 4 -                    G 0003/08
        member of the Enlarged Board or of the Enlarged Board
        as a whole is inadmissible under Article 24(3) EPC.
1.2     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.
2.1     In the amicus curiae brief under consideration it is
        not alleged that one of the members of the Enlarged
        Board should be excluded from the case for reasons of a
        personal interest in the case, or for having been
        involved previously as a representative of the party
        (Article 24(1) EPC). Rather, the submission is based on
        the ground that one member of the Enlarged Board of
        Appeal in this case as well as the Board as a whole is
        suspected of partiality.
2.2     The interlocutory decision in case G 2/08 mentioned
        under point 1.1 above states that it might appear
        appropriate not to proceed any further with a complaint
        or information received if the so-called "possible"
        reason for exclusion or objection which does not
                              - 5 -                    G 0003/08
        originate from a party to the proceedings or the
        Enlarged Board of Appeal itself, would amount to an
        abuse of procedure. The decision mentions as an example
        a complaint that is completely unsubstantiated or
        ignores established case law (point 2.3 of the Reasons).
2.3     Turning to the present case, the Enlarged Board notes
        that the submissions in the amicus curiae brief are
        vague and largely unsubstantiated. The brief does not
        say who made which concrete remarks in which function
        under which circumstances and in which connection with
        respect to the referred questions such as to justify
        his exclusion as a member of the Enlarged Board of
        Appeal for reasons of suspicion of partiality.
        Nevertheless the Enlarged Board is in the position to
        identify Mr D. Rees on the basis of these submissions
        as the member suspected in the amicus curiae brief and
        is also aware of his earlier duties as a director in
        DG 2 of the EPO between 2000 and 2003 and as an expert
        for the EU-Commission in the field of CII at that time.
        But these facts submitted to establish the suspicion of
        partiality are not suitable to do so. The mere general
        and unsubstantiated assertion that the member in
        question explained as an expert in earlier times, when
        he was still a director in DG 2, that the jurisprudence
        of the Boards of Appeal in the field of CII would not
        be against the EPC and the law of the member states of
        the EPO cannot support an argument that this member or
        even the whole Enlarged Board in this case (G 3/08)
        should be excluded from dealing with the referral. Nor
        can such a conclusion be supported by the – actually
        incorrect - submission that the members of the present
        Enlarged Board are all members of the Boards of Appeal.
                              - 6 -                    G 0003/08
        This is not an argument justifying the assumption that
        - deciding on the present referral - they are not
        solely bound by the provisions of the EPC.
2.4     According to established case law of the Boards of
        Appeal, of the Enlarged Board and also of national
        courts of member states, the mere fact that a board
        member has expressed a view on the legal issue to be
        decided on a previous occasion, be it in a prior
        decision or in literature, be it in a prior position in
        the EPO or as an expert for external political
        institutions, cannot lead to the conclusion of doubts
        as to impartiality. Nor does a purely subjective
        impression that the opinions of a board member might be
        disadvantageous to a particular interest justify an
        exclusion (see T 954/98, point 2.4 of the Reasons; see
        also J 15/04; see further Interlocutory decision of
        7 December 2006 in case G 1/05, point 20 of the Reasons;
        confirmed in G 2/08, supra, point 4.2 of the Reasons;
        [2002] EWCA Civ 90, [2003] QB 528 - Taylor v. Lawrence;
        [2003] UKHL 35, [2003] ICR 856 - Lawal v. Northern
        Spirit Ltd.; Locabail (UK) Ltd. v. Bayfield Properties
        Ltd.; Rappel de la portée des stipulations de
        l'article 6 de la Convention européenne des droits de
        l'homme et des libertés fondamentales, JurisClasseur
        Justice Administrative, Fasc 70-11; Baumbach/Lauterbach,
        Zivilprozessordnung, Vol. 1, 67th Edition, 2009, § 42
        Margin 44, 45, 57; Zöller, Zivilprozessordnung, 27th
        Edition, 2009 § 42 Margin 26, 33; Fasching, Lehrbuch
        des österreichischen Zivilprozessrechts, 2nd Edition,
        1990, Margin 154; Fasching, Kommentar zu den
        Zivilprozessgesetzen, Vol. 1, 2nd Edition, 2000, § 19
        Jurisdiktionsnorm Margin 10).
                              - 7 -                    G 0003/08
2.5     Once lawfully appointed, a judge is deemed to act in
        good faith and is therefore presumed impartial until
        proven otherwise (see interlocutory decision in G 2/08,
        point 3.2 with further remarks). Moreover the parties
        to judicial proceedings have a right to have their case
        considered and decided by lawfully appointed judges.
        Such judges not only have the right to be member of a
        Board but also have the duty to decide in the cases
        allocated to them. They 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 they have to withdraw from a case in
        which their impartiality could be reasonably doubted
        (see interlocutory decision in case G 2/08). E.g. there
        might indeed exist an issue of partiality if a judge
        let it be known that he would never change his mind on
        certain questions on which he has given his opinion
        before. However, in the present case there is no
        indication whatsoever that this might be so.
3.      Therefore, this Board sees no reason to exclude Mr Rees
        from its composition in case G 3/08 or to replace
        further members.
                              - 8 -                    G 0003/08
For these reasons it is decided that:
1.      The request of Mr Schultz is rejected as inadmissible.
2.      The composition of the Enlarged Board of Appeal in case
        G 3/08 remains unchanged.
The Registrar:                            The Chairman:
P. Martorana                              P. Messerli

“A stacked panel, on the other hand, is like a stacked deck: it is packed with people who, on the face of things, should be neutral, but who are in fact strong supporters of our technology. The key to stacking a panel is being able to choose the moderator. Most conference organizers allow the moderator to select die panel, so if you can pick the moderator, you win. Since you can’t expect representatives of our competitors to speak on your behalf, you have to get the moderator to agree to having only “independent ISVs” on the panel. No one from Microsoft or any other formal backer of the competing technologies would be allowed -just ISVs who have to use this stuff in the “real world.” Sounds marvellously independent doesn’t it? In feet, it allows us to stack the panel with ISVs that back our cause. Thus, the “independent” panel ends up telling the audience that our technology beats the others hands down. Get the press to cover this panel, and you’ve got a major win on your hands.”

Microsoft, internal document [PDF]

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