Two signatures are missing from the EBA letter of 8 December 2014 protesting against Benoît Battistelli's unprecedented attack on the independence of the Boards.
As we mentioned in the last part, there are 35 signatures at the end of the letter of 8 December 2014 from the Enlarged Board of Appeal to the Administrative Council.
"The casual observer could easily come away with the impression that the letter was unanimously approved and signed by all members of the Enlarged Board."After all, what self-respecting member of a judicial body wouldn't want to endorse such a call for the preservation of its independence? Surely this would be a clear and unambiguous matter of professional pride.
However, by comparing the signatures on the letter of 8 December 2014 with the business distribution scheme [PDF] of the Enlarged Board for 2014, it can be deduced that there were two persons who did not sign, namely:
● the Chairman of the Enlarged Board of Appeal (Wim van der Eijk) and
● the Chair of Technical Board 3.5.05 (Andrea Ritzka).
This curious omission attracted the attention of IP Kat back in December 2014:
There are already worrying signs that even the members of the Enlarged Board of Appeal do not consider themselves independent. Two signatures on the now-famous letter of the EBA to the AC protesting the suspension of the Board of Appeal member were notably missing.
These are the signatures of Chairman of the EBA himself, and the member of the Enlarged Board still working (the other two have retired) who participated in Decision R19/12. The President of the EPO is reported to have been furious at that decision, which found that an objection to the participation of the Chairman of the EBA on the basis of suspicion of partiality, because of his dual role as vice president of DG3 (the Boards of Appeal), was justified.
Can it be that pressure has been applied to these two persons?
"To this day it remains unclear why van der Eijk and Ritzka declined to sign the letter of 8 December 2014."It would appear that either they were overwhelmed by fear of retaliation by Battistelli or else motivated by indifference or antipathy towards the efforts of their colleagues.
In either case, their failure to sign the letter reflects poorly on them.
If they withheld their signatures out of fear of the consequences of supporting the action of the vast majority of their colleagues, then this would have been tantamount to an implicit admission that their personal independence, and that of the Boards as a whole, was fatally compromised.
If, on the other hand, it turned out to be the case that they declined to sign out of indifference or even antipathy towards the efforts of their colleagues to safeguard the independence of the judicial body to which they belonged, then the implications would be even more damning.
In that case, their failure to sign would be indicative of a striking absence of professional solidarity and a disturbing lack of concern for the independence of the judicial body that they purport to represent.
In the case of van der Eijk his failure to sign the letter of 8 December 2014 has been raised on a number of occasions in subsequent proceedings before the Enlarged Board of Appeal.
For example, the matter was raised in the context of partiality objections submitted in review cases R 2/2014 [PDF] (interlocutory decision of 17 February 2015) and R 08/13 [PDF] (interlocutory decision of 17 February 2015).
In R 2/2014 the petitioner made the following submissions:
The President had issued a "house ban" on a member of the boards of appeal without prior involvement of the Administrative Council and the Enlarged Board of Appeal in accordance with Articles 11(4) and 23(1) EPC.
Whereas almost all internal members of the Enlarged Board of Appeal wrote a letter of protest to the Administrative Council (attachment to the petitioner's letter of 23 December 2014), the Chairman neither signed said letter nor remonstrated against the President's action, which the petitioner considered to be ultra vires. The Chairman's failure to act gave cause for a suspicion of partiality.
Furthermore, his partiality affected the other Members as well. Since the other Members could not expect the Chairman to defend their rights vis-à-vis the President, a party to proceedings could only doubt their impartiality.
The petitioners submitted that the fact that the chairman objected to [van der Eijk] had not been amongst those expressing their concerns about the President's disciplinary action against a member of the boards of appeal reinforced the validity of the statement in R 19/12 that the chairman's position as VP3 was in conflict with his role as an independent judge; the petitioners found it unacceptable that their case might be decided by a judge who, having maintained his position as VP3 after R 19/12 was issued, conveyed an impression to the public that he was not willing to show the necessary distance from a President who obviously did not respect the independence of the judiciary.
"Once again, the Enlarged Board weaselled out of confronting the "elephant in the room"."Referring to the letter of 8 December 2014, the Enlarged Board simply brushed aside the objection about van der Eijk's failure to endorse it stating that "no conclusions about the objective partiality of the Enlarged Board's chairman can be drawn from the fact that he did not sign it".
Ritzka's failure to sign the letter of 8 December 2014 was the subject of comment in an article by patent attorney Ingve Björn Stjerna published in January 2015 [PDF] and entitled "Unitary patent and court system - Advocate General’s Statements of Position: Superseded by reality":
Suspension of a Boards of Appeal member by the EPO President
[…] Little attention has so far been given to a further interesting aspect of the suspension incident. According to a report by “JUVE Rechtsmarkt” of 9 December 2014 …, the suspended person is supposed to be a member of Board of Appeal 3.5.05.
If this should be correct, it would push the significance of the incident even further, since the Chair of this Board is one of the three judges who handed down the mentioned interlocutory decision R 19/12, in which an insufficient separation of the executive and judiciary at the EPO was conceded.
According to reports, President Battistelli does not fully agree with the result of that decision. Since its publication, two of the three judges involved have retired.
Should Board of Appeals 3.5.05 really be affected by the suspension – an indication for which could also be the fact that its Chairman has not signed the mentioned letter from members of the Enlarged Board of Appeal –, this could also be interpreted as an attempt to set an example with regard to the last judge from the context R 19/12 remaining at the EPO and to emphasize that anybody being prepared to render courageous decisions like R 19/12 will have to pay a high price for this – which, of course, would be further evidence for a lack of independence of the Boards of Appeal. However, as long as no further details are known, this remains speculation.
"We conclude by noting that although the "missing signatures" affair relates to events which happened back in December 2014, it nevertheless has contemporary relevance for G 1/21."According to well-informed internal sources, in the immediate aftermath of the affair she was "perusaded" to step down from participating in the Presidium [PDF] of the Boards of Appeal. The Presidium is the internal body responsible for laying down the rules and organising the work of the Boards of Appeal. However, it seems that, after a suitable period of "sackcloth and ashes", she has in the meantime returned to a position in that body.
We conclude by noting that although the "missing signatures" affair relates to events which happened back in December 2014, it nevertheless has contemporary relevance for G 1/21.
This is because the affair shows that two members of the entrusted panel - including the rapporteur - are persons whose commitment to the principle of judicial independence is in grave doubt.
The failure of these members to endorse the efforts of the vast majority of their colleagues back in December 2014 suggests that their commitment to the independence of the EPO's judicial organ is at best lukewarm and it would appear to raise serious questions about their professional integrity and impartiality. ⬆