EP 2 133 289 B1 relates to a device for stocking and removing goods and for cleaning the store, and method for operating such a device
Brief outline of the case
In T 2078/17, the alternate board rejected as inadmissible the request filed by the opponent pursuant to Art 24(3), first sentence, second alternative, for recusal of the three members of the original board of appeal on grounds of suspected partiality.
The opponent filed a petition for review pursuant to Art 112a against the decision of the alternate board.
This petition was rejected as clearly not admissible.
The petitioner’s point of view
In the present review proceedings, the petitioner asserted a serious violation of Art 113(1) within the meaning of Article 112a(2,c).
It submitted that the interlocutory decision, which was issued in writing, was based on grounds on which it had not been able to comment before the interlocutory decision was issued.
The petitioner requested that the interlocutory decision T 2078/17 be set aside and that the proceedings on the request for recusal directed against the alternate board be reopened pursuant to Art 24(4), so that the alternate board would have to decide again on the admissibility of the petition for recusal directed against it.
For the petitioner, any decision by which a board has taken a final, i.e a. conclusive and incontestable, decision, on a request of a party provided for in the EPC must be open to review by the EBA, provided that the admissibility requirements of Art 112a and R 104 to 108 are met. This was evident from G 1/97 and the” travaux préparatoires” on the revision of the EPC in 2000.
Decisions open to review within the meaning of Art 112a included in principle not only decisions under Art 24(4) but also those decisions rejecting recusation of board members as inadmissible.
The decisive factor is not whether it is an interlocutory decision, but whether a final decision has been made on the matter. This was the case with the present decision on the request for recusation. ‘
It also includes the preliminary proceedings in which the board itself decided on the admissibility of the recusal request directed against its members. A significant proportion of the decisions of the boards in grant or opposition proceedings are interlocutory decisions and there is no reason why such decisions should be excluded in principle from the possibility of revision by the EBA
The EBA’s decision
The petition for review is manifestly inadmissible because interlocutory decision T 2078/17 is not a decision against which a petition for review within the meaning of Article 112a can be filed.
The legal consequence of a successful petition for review is, according to Art 112a(5), the setting aside of the decision and the reopening of the proceedings.
R 108(3) further specifies that, in the case of a well-founded petition for review, the EBA shall order the reopening of the proceedings before the board competent under R 12b(4)’ and also provides that the EBA may order that members of the board who participated in the annulled decision are to be replaced.
R 106 also points out that not every decision of a board can directly lead to a petition under Article 112a. An objection has in principle to have been raised during the OP.
Accordingly, the review procedure under Art 112a, in accordance with the structure of the relevant provisions, does not in any event concern decisions which do not conclude proceedings before a board against the party concerned.
The travaux préparatoires for the EPC revision 2000, which aimed at the introduction of this new legal remedy, also do not indicate anything other than that the review of decisions concluding proceedings was intended.
In the present case the EBA insisted on decision G 1/97 which actually rendered the opening of the possibility of a petition for review necessary.
The EBA held that, according to the legislator, the EBA should examine whether ‘the appeal proceedings are tainted by the alleged procedural defect or whether an established offence could have influenced the decision’ (see MR/2/00 d, Article 112a, point 18), so that a causality between the procedural defect and the outcome of the proceedings was to be seen.
In line with the legislative history, previous case law has characterised the review procedure as a procedure reserved for procedural deficiencies which are so serious that they are unacceptable to the legal system and justify a departure from the principle that proceedings which have led to a final decision should not be reopened in the interests of legal certainty, see also R 1/08, Reasons 2.1; R 16/12, Reasons 4.2.
The question whether Art 112a can also apply in relation to decisions other than those closing appeal proceedings was addressed in decisions R 5/08, see Reasons XIV.(c), XV.(c) and XVI.(c)), and R 2/15, see Reasons 2.1 to 2.5.
The statement of the EBA in R 2/15 that it was implicitly recognised in decision R 5/08 that petitions for review against interlocutory decisions are not in principle inadmissible appears to go too far.
It appears to have been merely implicitly recognised in decision R 5/08 that the question of whether a petition for review can be filed against a particular decision is a question that does not necessarily take precedence over other admissibility requirements such as the fulfilment of the requirements of R 107.
Art 106(2) provides that a decision of one of the bodies referred to in Art 106(1) EPC, which does not terminate proceedings in respect of a party may only be appealed together with the final decision, unless the decision authorises a separate appeal.
It is therefore at the discretion of the deciding body whether or not to allow a separate appeal under Art 106(2) against the interlocutory decision and thus ultimately the appeal to the boards at that stage of the proceedings.
In the opinion of the EBA, the application of Art 106(2) in the context of the review procedure is out of the question.
An application of Art 106(2) in the sense that a petition for review may be filed against an interlocutory decision of a board, provided that such a review has been allowed by the board, is also ruled out for the reason that such an allowance would be a matter for the deciding board. However, there is no legal basis and therefore no power of the board of appeal to provide for such authorisation of a separate review
Comments
The decision might look long and well argued, I will however leave it open to readers whether the decision is at all convincing. It is not for me.
Whatever the EBA might say, the decision of the alternate board, although being an interlocutory decision, is. in essence, a final decision, as it cannot be appealed. Art 106(1) is concerned with decisions of first instance deciding bodies and not with decisions of the boards of appeal which are not appealable. Bringing in Art 106(1) in the present argumentation appears thus not really relevant.
The present decision has apparently two aims:
- Rescinding R 2/15 and making clear that petitions for review are not open to interlocutory decisions
- Block any board to allow a separate appeal on an interlocutory decision
I would classify this decision of the EBA as a further decision of the type “dynamic interpretation”.
In spite of the existing possibility, I do not remember seeing a single decision pursuant to Art 112a in which the original members of the board were ever replaced. This part of the argumentation has merely an alibi function.
The present decision makes again clear that the boards of appeal of the EPO need to be reformed. Members of the LBA or the TBA should not be members of the EBA. The president of the EBA should not be at the same time president of the boards.
Comments
4 replies on “R 5/23 – An interlocutory decision of a board is not open to a petition for review”
The inability to ask for an appellate review an interlocutory, yet still final and binding, decision reminds me of the situation with the format for oral proceedings.
It seems that the way things are set up at the EPO, oral proceedings must first be conducted in the “wrong” format (or with the “wrong” composition of the Board) before an appeal body can be asked to review the interlocutory decision that reached the “wrong” conclusion.
Are we really to believe that it serves the interests of justice to force parties to conduct the same oral proceedings twice, with only the re-run being conducted according to the correct interpretation of the EPC? That surely cannot be correct, as the parties cannot exactly wipe from their minds what happened during the first run, with the consequence that the proceedings will then forever be tainted by that (“wrong”) first run.
Of course, such bothersome situations will never materialise in practice, as which Board of Appeal (or EBA) would, in those circumstances, ever overturn an interlocutory decision (on OP format or BoA composition), no matter how clearly flawed?
@ Doubting Thomas,
If I follow your reasoning, it does not bring anything to redo an OP if in the first one a procedural violation occurred. For somebody claiming the respect of the EPC in other circumstances, this is rather surprising, not to say puzzling.
Either you claim the respect of the correct interpretation of the EPC in all circumstances, or you refrain to request it in some others, depending on your convenience. This is not very coherent.
I cannot at all share your position, as it would mean that a SPV can be blatantly ignored. When looking at the 10 cases reopened by the EBA after a petition for review, in 8 cases the decision was upheld. However in 2 cases, the decision after reopening was exactly the opposite. In examination it went from refusal to grant. In opposition it went from revocation to maintenance in amended form. In both cases, the applicant or the proprietor profited from it.
I would conclude that in a majority of cases, the new decision might not be fundamentally different, but it can well happen that it is different. At least the second decision can be assumed to be the right one with the correct interpretation of the EPC. I do not have any directly available statistics when a case is remitted to the OD or the ED after a first decision tainted by a SPV, but my guess is that the figures are of the same order of magnitude.
That the boards would never overturn a decision on the format of the OP is merely due to their lacking of an effective independence. The members of a bord taking a decision embarrassing for the president of the boards or the upper management of the EPO, take the risk of not beeing re-appointed. This is a big deterrent against any displeasing decision.
So it seems that I did not make my point clearly enough.
For the avoidance of doubt, I am NOT advocating for a procedural violation to go unanswered. What I am saying is that, in common with selection of the “wrong” format for OPs, proceeding with the “wrong” members of a Board is a violation that affects absolutely everything that follows.
It is futile to continue with proceedings that, from the outset, do not have a sound legal basis. Any decision in such proceedings will be tainted by the lack of proper legal basis for the proceedings. (Another example of a fundamental flaw would be conducting in-person proceedings in the “wrong” (ie unlawful) location.)
My point is therefore that, logically, it ought to be possible to file appeals (having suspensive effect) against any decision that, if “wrong”, could poison everything that follows. This ought to be possible even for interlocutory decisions.
Regarding my comments on no Board or EBA taking action in such circumstances, that merely reflects my cynicism. I would much rather that they upheld both the letter and spirit of the EPC. However, being a realist, I recognise that hoping for judgments at the EPO which show no fear or favour is pointless in circumstances where true justice requires going against the wishes of the President.
@ Doubting Thomas
If you allow me, there was a problem of Art 84, not support, but clarity as such.
It is now clear what you meant: it is futile to redo an OP in the case the legal basis for the form of the OP is missing.
It is difficult not to agree with this position.
G 2/19 has decided that Haar and not necessarily Munich was a lawful location to hold OP before the boards.
G 2/19 has been interpreted such that OP before the boards do not all have to be held in Haar, but can also be held in Munich.
Ther remains a problem: in case of OP by ViCo before the boards, the three members of the board do not have to sit together, cf. Art 15a(3) RPBA. The location of the board is thus undetermined. This apples a fortiori to OP before first instance bodies which are by default held in the form of a ViCo.
I still fail to see the legal basis of holding OP by ViCo, when, on top of this, the three members of the deciding body are not sitting together. It is difficult to reconcile G 2/19, with Art 15a(3) RPBA when it comes to the boards or first instance divisions, as Art 116 and R 116 and 116 do not distiguish OP before the first instance or the boards.
There is nothing to say against holding OP by ViCo, provided parties have the choice of the form of the OP, and all three members of the deciding body are sitting together. This is never the case in first instance, and it is only in case of an in-person or of a mixed mode OP before the boards.
As indeed the boards only benefit of a pseudo-independence over the chair of the boards, and ultimately over the president of the EPO, it pointless to expect a decision from the boards as well as from the EBA going against the wishes of the upper management of the boards and of the EPO.
I would however have expected that, from time to time a party to proceedings before the EPO raises the question of the legitimacy of OP by ViCo before the EPO, especially in first instance, irrespective of the limitations the EBA has imposed itself in G 1/21, since Art 116 and R 116 and 116 do not distiguish OP before the first instance or the boards.