Ingo Beckdorf is reputed to have shown a credible degree of independence in the past. It remains to be seen what he will do this time around.
In this part we turn our attention to one of the better known internal members of the Enlarged Board (EBA, elevated court) in case no. G 1/21, Ingo Beckedorf.
"Due to this lack of transparency which is typical for the EPO, it's more or less impossible for outsiders to get a clear picture of what exactly went on behind the scenes in this case."Beckedorf joined the EPO in 2007 and has been a legally qualified member of the Enlarged Board of Appeal since 2012. Before joining the EPO, he was a press attaché and deputy head of the Office of the European Parliament in Germany (2001-2003) and a judge at the Hanseatic Higher Regional Court of Hamburg (1997-2006).
Beckedorf previously demonstrated an ability to upset the apple-cart in August 2015 when he is reputed to have acted as the legal brain behind the "courtroom revolt" which led to the replacement of the Chairperson in case no. G2301/15.
That case was about the "removal from office" proceedings initiated against the suspended Board member who had been subjected to an unlawful "house ban" by Battistelli in December 2014.
The final decision in case G2301/15 contains the following terse summary of the relevant facts:
XI. On 28 July 2015 the respondent filed an objection against the then chairwoman under Article 24(3) EPC.
XII. On 5 August 2015 the Enlarged Board took an interlocutory decision under Article 24(4) EPC allowing this objection and appointing a new member of the Enlarged Board in her place.
"In June 2015, the Chairman of the Administrative Council Jesper Kongstad - acting in close cooperation with Battistelli - submitted a removal from office request to the Enlarged Board of Appeal."The interlocutory decision of 5 August 2015 has never been made publicly available - presumably to spare embarrassment to the deposed Chairperson.
Due to this lack of transparency which is typical for the EPO, it's more or less impossible for outsiders to get a clear picture of what exactly went on behind the scenes in this case.
However, with the assistance of information supplied by EPO insiders, the relevant train of events can be pieced together as follows.
In June 2015, the Chairman of the Administrative Council Jesper Kongstad - acting in close cooperation with Battistelli - submitted a removal from office request to the Enlarged Board of Appeal.
At the same time the Council announced that it would hold an extraordinary meeting in mid-September 2015.
Although the purpose of this extraordinary meeting was not expressly stated, it was clear to those involved that the intention of Kongstad and Battistelli was that the Council should convene to dismiss the suspended Board member.
All that was needed to finalise the arrangements for this little coup de théâtre was for the Enlarged Board to issue a proposal for removal from office in accordance with Article 23 (1) EPC.
"Van der Eijk was supposed to endorse the Council's request and let the members of the Enlarged Board know what result they were expected to deliver."After the Council Chairman had submitted his request to the Enlarged Board, Battistelli summoned the Vice-President of DG3 (Wim van der Eijk) and the Chairperson of the Legal Board (Ms Claude Vallet) to his office on the 10th floor of the Isar building in order to "instruct" them on to how to proceed.
Van der Eijk was supposed to endorse the Council's request and let the members of the Enlarged Board know what result they were expected to deliver. Vallet was told that she would lead the proceedings in the role of Chair of the Enlarged Board.
However, it seems that the other members of the panel entrusted with the case - including Beckedorf - were uncomfortable with the way in which Vallet began to conduct the proceedings.
In particular, they took exception to her overly eager efforts to comply with the timetable set by Battistelli and Kongstad by cutting procedural corners and setting exceedingly tight deadlines for the respondent and - by extension - for the Board itself.
In fact the deadlines were so tight that the other Board members complained that they had insufficient time to conduct a thorough assessment of the written submissions in preparation for the oral hearing.
"They voted to exclude her from the case due to a well-founded suspicion of partiality."In the end, the other members of the panel lost patience with Vallet and decided to make a stand for procedural fairness. They voted to exclude her from the case due to a well-founded suspicion of partiality.
The proceedings then continued under Beckedorf's chairmanship and ended with a decision to reject the Council Chairman's request as inadmissible.
Because of the over-enthusiastic deference and "anticipatory obedience" which she had shown towards her tyrannical compatriot Battistelli, Vallet's reputation inside the Legal Board is reported to have suffered in the aftermath of the affair. According to the EPO rumour mill, she went into early retirement a few years later in 2018.
When the Council submitted a further "removal from office" request against the suspended Board member at the start of 2016, it seemed likely that the Enlarged Board would also reject this as inadmissible.
"Because of the over-enthusiastic deference and "anticipatory obedience" which she had shown towards her tyrannical compatriot Battistelli, Vallet's reputation inside the Legal Board is reported to have suffered in the aftermath of the affair."However, according to reliable inside sources, Kongstad let it be known that if the Enlarged Board declined to admit the request, then its members might encounter "problems" in connection with their re-appointment. This veiled threat was considered to be primarily directed at Beckedorf whose re-appointment was due to be voted on at the upcoming Council meeting in June 2016.
And so - to the great surprise of many external observers - it came to pass that the Enlarged Board declared in May 2016 that the Council's attempt to re-run the "removal from office" procedure was admissible.
This decision was in clear breach of the principle of double jeopardy and it ignored the fact that the new request from the Council was more or less a carbon copy of the preceding request which had been previously rejected in September 2015.
However - notwithstanding the fact that it had effectively been coerced into admitting the Council's request - the Enlarged Board signalled that it intended to probe into the details of the case. In particular it announced that it proposed to conduct a witness examination of members of the EPO Investigative Unit in connection with allegations of unauthorised covert surveillance.
"In particular it announced that it proposed to conduct a witness examination of members of the EPO Investigative Unit in connection with allegations of unauthorised covert surveillance."This did not fit in with Battistelli's tightly choreographed "roadmap" which foresaw the role of the Enlarged Board as that of a mere rubber-stamping instance whose sole function was to deliver the "results" expected by the Council.
As a result Bastistelli threw one of his notorious tantrums and - apparently without consulting the Council - he proceeded to use EPO funds to hire two top-dollar British QCs from 39 Essex Chambers - Alison Foster (now a High Court Judge) and Colin Thomann - in a desperate last-minute attempt to "cajole" the EBA into rethinking its proposed course of action.
The Enlarged Board's - perfectly understandable - reaction to Battistelli's "procedurally irregular intervention" was to declare that its independence was under attack.
When Kongstad refused to distance himself from Battistelli's actions during the hearing on 14 June 2016 [PDF], the Enlarged Board terminated the proceedings and unceremoniously dismissed the Council's request for a proposal to remove the suspended member from office.
Due to Battistelli's clumsy and counter-productive efforts to "nobble" the Enlarged Board and the ensuing negative publicity which irritated many of the Administrative Council delegates, Beckedorf managed to emerge from that affair relatively unscathed. The Administrative Council voted to renew his appointment at its 144th Meeting which took place at the end of June 2016.
"The Administrative Council voted to renew his appointment at its 144th Meeting which took place at the end of June 2016."Beckedorf's role in the procedures G2301/15 and G2301/16 demonstrated that he was capable of showing a credible degree of independence and that he wasn't always prepared to dance to the tune of his political masters when their wishes conflicted with his sense of professional ethics.
But a lot of water has flowed under the Ludwigsbrücke near the EPO headquarters in Munich since those days, and it remains to be seen whether or not Beckedorf proves himself able and willing to swim against the tide in the present procedure G 1/21. ⬆