T 1627/09 (Desaturases II/WASHINGTON) 14-09-2018

1. Members of a board of appeal may not take part in a case in which they have any personal interest, or if they have previously been involved as representatives of one of the parties, or if they participated in the decision under appeal (Article 24(1) EPC). If, for one of these reasons, or for any other reason, a member of a Board of Appeal considers that he/she should not take part in an appeal, he/she shall inform the Board accordingly (Article 24(2) EPC).

2. In view of the notices of self-recusation of the chair and the legal member who formed part of the board in decision T 1627/09 of 10 October 2013, the present board, in which the members concerned have been replaced by their alternates, has to decide on the action to be taken (Article 24(4) EPC).

3. According to the jurisprudence of the Boards of Appeal, notices of self-recusation by board members do not automatically effectuate their exclusion from the proceedings, but only initiate the procedure under Article 24(4) EPC, without pre-empting the outcome of the decision to be taken. In a decision on the members' replacement, the grounds given in the notices of self-recusation, which may by their nature constitute possible grounds for an objection of partiality, should normally be respected, as only a very strict observance of the requirement of impartiality can be considered in line with the Boards' judicial function as last instance within the European patent system. There should be no remaining real possibility of a party or the public suspecting bias after a decision by a board (cf. decisions G 1/05, OJ EPO 2007, 362, points 2 and 7; J 15/04 of 30 May 2006, points 12 and 13; T 584/09 of 1 March 2013, point 7; and R 2/15 of 21 October 2015, points 3 and 4).

4. The Boards' jurisprudence in this respect is in accordance with Article 6(1) of the European Convention on Human Rights (ECHR) and Article 47(2) of the Charter of Fundamental Righs of the European Union (CFR), both recognised as binding standards for proceedings before the boards, as they are expressing principles of procedural law generally recognised in the Contracting States of the European Patent Organisation (EPO) (see Article 125 EPC and decisions D 11/91, OJ EPO 1995, 721, point 3.3; G 1/05, supra; G 2/08, OJ EPO 2010, 456, point 3; R 19/12 of 25 April 2014, points 8 to 10; R 8/13 of 20 March 2015, point 2; R 2/14, supra, point 5). For that reason, the case law of national courts in the EPO Contracting States, as well as the case law of the European Court of Human Rights, may serve as supplementary sources of interpretation of the EPC (cf., inter alia, R 19/12, supra, point 9).

5. According to the case law of the European Court of Human Rights on Article 6(1) ECHR, only under very exceptional circumstances a notice of self-recusation shall not lead to a replacement (cf., inter alia, European Court of Human Rights, Rudnichenko v. Ukraine, no. 2775/07, paragraph 113 to 119; along the same lines cf., as an example for national case law in the EPO Contracting States, Austrian Supreme Court 4 Ob 186/11y EFSlg 131.987).

6. For a notice of self-recusation under Article 24(2) EPC to be accepted, it is therefore not necessary - as is the case for objections raised under Article 24(3) EPC, first sentence - to establish an actual partiality. It is sufficient that an appearance of partiality is at least arguable in the circumstances of the case (see G 1/05, supra, point 19; R 2/15, supra, point 5 with reference to European Court of Human Rights, Micallef v. Malta, no. 17056/06, paragraph 98).

7. In the present case, no particular concerns as to the impartiality of the board members have arisen or had been voiced by the parties before. At the same time, it is at least arguable that an independent observer might objectively conclude that such bias could exist (e.g. see decision T 584/09, supra, where - as in the present case - appeal proceedings had been re-opened upon a petition for review and board members were then replaced upon self-recusation, with the board there arguing that such replacement had been justified to avoid any perception of bias on the members' side).

8. As there are no exceptional circumstances that could lead to a different conclusion, the notices of self-recusation are to be accepted.