Previously in this series:

• The EPO's War on Justice and Assault on the Law -- Part 1: Rumours of a Kangaroo Court at EPOnia
• The EPO's War on Justice and Assault on the Law -- Part 2: Just Another Pro Forma Rubber-Stamping Exercise?
• The EPO's War on Justice and Assault on the Law -- Part 3: The Current Line-up
• The EPO's War on Justice and Assault on the Law -- Part 4: The President of the Boards of Appeal
• The EPO's War on Justice and Assault on the Law -- Part 5: Battistelli's “Swedish Chef”
• The EPO's War on Justice and Assault on the Law -- Part 6: The Habermasian Who Warned About “Legal Anarchy”
• The EPO's War on Justice and Assault on the Law -- Part 7: Calle's Strange Metamorphosis
• The EPO's War on Justice and Assault on the Law -- Part 8: The Radical Student “Brotherhood”
• The EPO's War on Justice and Assault on the Law -- Part 9: Squeezing Out the Lifeblood of Democracy?
• The EPO's War on Justice and Assault on the Law -- Part 10: A Faustian Pact?
• The EPO's War on Justice and Assault on the Law -- Part 11: The Rapporteur Who Once Was Vice-President
• The EPO's War on Justice and Assault on the Law -- Part 12: Internal Members: Ingo Beckedorf
• The EPO's War on Justice and Assault on the Law -- Part 13: Internal Members: Gunnar Eliasson and Andrea Ritzka
• You are here ☞ Nemo Iudex in Causa Sua?

According to well-informed commentators, the majority of the panel are under suspicion of partiality.

Summary: After Benoît Battistelli had put Carl Josefsson in charge at BoA António Campinos decided to make him the 'New Normal' rubber-stamping apparatus, in effect serving to normalise clear violations of the EPC

At the time of writing, the EPO's file register (warning: epo.org link) for case no. G 1/21 contains around ten anonymous "third party observations" ^[1] and an impressive number of amicus curiae briefs (warning: epo.org link) – 47 in total.

The amicus curiae briefs come from a wide range of sources, including individuals, patent attorney associations and large multinational corporations with a great deal of skin in the patenting game, for example Bayer (Monsanto), Siemens, BASF, Philips International B.V., Hoffmann-La-Roche AG and Philip Morris Products.

The contents of these submissions have been the subject of analysis and comments both on IPKat and on the Kluwer Patent Blog.

"The amicus curiae briefs come from a wide range of sources, including individuals, patent attorney associations and large multinational corporations with a great deal of skin in the patenting game, for example Bayer (Monsanto), Siemens, BASF, Philips International B.V., Hoffmann-La-Roche AG and Philip Morris Products."Many of the comments concern suspicions of partiality relating to the internal members of the panel entrusted with the case.

Much of the criticism has centred on the Chairman of the Enlarged Board, Carl Josefsson.

It needs to be recalled here that, in his capacity as President of the Boards of Appeal, Josefsson was directly involved in the introduction of the disputed amendments to the Rules of Procedure of the Boards of Appeal. The involvement of the President of the Boards of Appeal in this amendment procedure is foreseen under Rule€ 12c(2)€ EPC. (Warning: epo.org link)

However, it now seems that Josefsson - in his capacity as Chairman of the Enlarged Board - is insisting on playing a key role in deciding whether or not the amendments which he himself proposed are compatible with the European Patent Convention.

As pointed out by Thorsten Bausch on the Kluwer Patent Blog, this would appear to be in flagrant disregard for the fundamental and generally recognised principle of natural justice, nemo iudex in causa sua, according to which no person should be entrusted with the task of judging a case in which they have an interest.

"Much of the criticism has centred on the Chairman of the Enlarged Board, Carl Josefsson."One pseudonymous amicus curiae brief submitted under the name "Schauinsland" ^[2] provide a neat summary of the issues in Josefsson's case:

Manifest partiality of the president of the boards of appeal in case G 1/21

The president of the boards of appeal, Mr Josefsson, has decided to put himself as chair in G 1/21.

The succession of facts mentioned above would impose that Mr Josefsson deports himself in G 1/21. Not only he is chairing the case, has contributed to the drafting of Art 15aRPBA2020, but at the same time he has contributed in rushing the whole affair by abiding to the bare minimum foreseen under R 115 when summoning to oral proceedings. In view of his attitude, there is not even the perception that Mr Josefsson would be not prejudiced, he actually is.

The criticism of the composition of the panel is not limited to Josefsson but also includes the other internal members.

In the case of Ingo Beckedorf, it has been claimed on IPKat that he was personally responsible for drafting the text accompanying the proposal for the new Article 15a RPBA ^[3].

Another commentator pointed out that Beckedorf had already acted as Chairman in an appeal case where the Board responsible for the decision ruled that an oral hearing could be held by videoconference despite the absence of consent from a party.

"The criticism of the composition of the panel is not limited to Josefsson but also includes the other internal members."The implication here is that Beckedorf has already expressed an opinion on the issues under consideration in G 1/21 thereby effectively disqualifying himself from participating in this referral case.

On IPKat, Flopsy the Bunny made the following comment casting doubts on the impartiality of the majority of internal members of the panel entrusted with case no. G 1/21:

At the meeting where the BOAC "consulted" with users on the new Art 15A, the BOAC was strongly urged to amend the text of the article to make enforced attendance via VICO a purely temporary provision during the pandemic. These submissions were completely ignored on the basis (according to the notice published on 15 December 2020) that new Art 15A "merely clarifies an existing possibility" and thus is already compliant with the EPC. Present on behalf of the Boards at that meeting were the following members of the panel selected for hearing this appeal:

C. Josefsson I. Beckedorf G. Eliasson A. Ritzka

So that's a majority of the panel who have the appearance of partiality.

Josefsson chairing the panel is beyond a joke.

It really does look like the Enlarged Board of Appeal has a serious problem with the composition of the panel in this case.

We will return to this topic later, but first of all we will turn our attention to what has become known as the "missing signatures" affair of December 2014 and its potential implications for two individual EBA members in the present case. ⬆

Documents cited in this article:

1. G 1/21 - Third Party Observations [PDF]



2. A. Schauinsland amicus curiae G 1/21 [PDF]



3. CA-5-21_en [PDF]