Josefsson must step aside and will be replaced by a Swiss member of the EPO's EBA, Fritz Blumer.

Summary: The 'real judges' of Benoît Battistelli and the cronies of António Campinos (whom he pressures to allow illegal software patents) have gone too far; and now the public is losing confidence in the integrity of the boards, even the highest or most glorified one

This postscriptum to the series about case no. G 1/21 is occasioned by the interlocutory decision of the Enlarged Board of Appeal, taken just over a week ago on 17 May 2021.

At the time when the series was being written, the Enlarged Board of Appeal had made no identifiable public reaction to the allegations of partiality against the Chairman and internal members of the panel assigned to deal with case no. G 1/21.

"For the purpose of considering these matters, the Enlarged Board sat in an altered composition without the members who were under suspicion of partiality."However, the situation changed rather dramatically on 17 May 2021 when the Enlarged Board convened to consider partiality objections raised by the appellant, Rohde & Schwarz GmbH.

Following deliberation the Enlarged Board issued an interlocutory decision, which has been published online here. (Warning: epo.org link)

The appellant raised objections against the Chairman (Carl Josefsson) and two other internal members (identified as "X" and "Y" in the decision).

A further member of the panel (identified as "Z" in the decision) informed the Enlarged Board that he was involved in the preparation of Article 15a RPBA and that his involvement could be relevant to the objections made by the appellant. He therefore asked the Enlarged Board to decide on his continued participation in the case.

For the purpose of considering these matters, the Enlarged Board sat in an altered composition without the members who were under suspicion of partiality.

The altered composition was as follows:

Fritz Blumer (Chairman)

Win van der Eijk

Tamás Bokor

Richard Arnold

Evangelos Chatzikos

Pascal Gryczka

Giovanni Pricolo

From this we can deduce that the partiality objections under consideration related to the following members of the original panel: Carl Josefsson, Ingo Beckedorf, Gunnar Eliasson and Andrea Ritzka.

The Enlarged Board in its altered composition decided that the partiality objections against Josefsson and one other internal member (the person identified as "Z") were substantiated.

Josefsson will now be replaced by Fritz Blumer, a Swiss member of the Enlarged Board, who chaired the interlocutory session of 17 May.

Fritz Blumer will now take over the position of Chairman

As far as can be determined, the other person removed from the case ("Z") is Ingo Beckedorf. Beckedorf was reputed to have been involved in the drafting of the disputed regulation and he confirmed this in his own voluntary submissions to the Enlarged Board. Beckedorf will now be replaced by the Hungarian Tamás Bokor.

Information from sources close to the action suggests that many senior legally qualified members of the Enlarged Board were becoming increasingly critical of the manner in which Josefsson was conducting the procedure.

Josefsson gave the impression of being oblivious to the widely articulated - and entirely legitimate - public concern about his actions. His continued participation in the procedure risked bringing the Enlarged Board – and by extension the Boards as a whole – into public disrepute.

It seems that a majority of the Enlarged Board decided that it was time to stage a "palace revolt" to sideline Josefsson in the hope of preventing any further reputational damage.

Most observers agree that the interlocutory decision of 17 May is a hefty slap in the face for Josefsson who should have voluntarily requested the Enlarged Board to recuse him, rather than waiting for the appellant to raise an objection to his participation.

The other member who was replaced (Beckedorf) had the good grace to inform the Enlarged Board that there might be grounds for questioning his impartiality and he actively requested the Enlarged Board to consider his position.

Josefsson, on the other hand, stubbornly insisted upon remaining as Chairman until he was forcibly removed in response to the appellant's objection.

This raises serious questions about Josefsson's sense of judgement in politically sensitive cases like G 1/21. He really does seem to be suffering from a bad case of the EPOnian "tunnel vision" syndrome.

The IP blogosphere has been remarkably restrained in its reaction to the interlocutory decision of 17 May. The decision was posted on the Kluwer Patent Blog by Thorsten Bausch and it attracted a number of comments. IPKat also reported on the decision under the heading "EPO responds to accusations of perceived bias in G1/21 (ViCo oral proceedings)" but so far the posting has attracted few comments. Or maybe Rose from AstraZeneca has been busy with her red pencil, helping to keep the EPO safely immune from too much criticism. Otherwise, there has been very little public exposure given to the matter.

It now remains to be seen how the Enlarged Board in its new composition will deal with the case after Josefsson has been sidelined.

It's still too early to say whether his removal was just a carefully choreographed move for the sake of "optics" or whether it will really turn out to be a genuine game-changer.

The interlocutory decision of 17 May gives some hope for a more balanced procedure free from Josefsson's visible influence.

However, the visible influence which Josefsson could still exert over the proceedings from behind the scenes should not be underestimated.

Rule 12d(3) of the EPC (warning: epo.org link), introduced by Battistelli's 2016 "reform", makes all internal members of the Enlarged Board dependent upon Josefsson's goodwill for the purpose of obtaining a positive "opinion" on their reappointment. In other words, no internal member of the Boards can afford to dirty their copybook with the Overlord of Haar, who evidently plans to remain on his throne until 2027 at least.

This effectively means that all internal members of the reconstituted panel are beholden to Josefsson despite the fact that he has been officially sidelined from case no. G 1/21.

Thus, although Josefsson can no longer influence the outcome of the procedure directly, he still has considerable means at his disposal to influence it indirectly.

We conclude this postscriptum by mentioning that the hearing in case no. G 1/21 is scheduled to take place by videoconference on 28 May 2021.

Members of the public wishing to attend as observers are required to register here. (warning: epo.org link and deadline imminent; it says "please register online below (registration form in English) by 27 May 2021.")

Watch this space for further updates… ⬆