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G1/21 – ViCo Enlarged Board changes composition to avoid perception of partiality

19th May 2021

The EPO’s Enlarged Board of Appeal has issued an interlocutory decision on G1/21, following which the composition of the Enlarged Board will change. Two members of the Enlarged Board, including the Enlarged Board’s current Chairman, will be replaced by two new members.

As reported previously, the G1/21 referral arose following oral proceedings that we attended before the Technical Board of Appeal in February 2021. The Enlarged Board of Appeal is due to hold oral proceedings next week (28 May 2021) on the question “Is the conduct of oral proceedings in the form of a videoconference compatible with the right to oral proceedings as enshrined in Article 116(1) EPC if not all of the parties to the proceedings have given their consent to the conduct of oral proceedings in the form of a videoconference?

When the composition of the Enlarged Board to hear this case was first announced, some parties raised suspicions of partiality against three members of the Enlarged Board that had recently been involved with preparing and enacting new legislation (Article 15a of the Rules of Procedure of the Boards of Appeal), which deals with oral proceedings by video conference. The three members were:

  • the Chairman of the Enlarged Board, who holds the position of President of the Boards of Appeal and had proposed the new legislation in their role as President, and
  • two other members, who had been members of the Presidium of the Boards of Appeal and who had been consulted during the preparation of the new legislation in their role as members of the Presidium.

The new interlocutory decision was issued by a recomposed Enlarged Board that did not include these three members and also did not include further member who had been part of a working party involved in preparing the new legislation.

The interlocutory decision found there to be an objectively justified fear of partiality in the case of two members of the original Enlarged Board: the Chairman and the further member who been part of the working party. The decision found that no objectively justified fear of partiality had been established in the case of the two other members of the original Enlarged Board who had been members of the Presidium.

Therefore the oral proceedings will take place next week before the Enlarged Board under a different composition. We will report further developments on this hotly anticipated case in due course.

This article is for general information only. Its content is not a statement of the law on any subject and does not constitute advice. Please contact Reddie & Grose LLP for advice before taking any action in reliance on it

Christopher Smith
Senior Associate
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Steve Howe
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Would you like to know more? You can talk to Christopher Smith who will be able to help. Call +44 (0)20 7242 0901


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