J.4 Disciplinary matters
Additional Rules of Procedure of the Disciplinary Board of Appeal of the European Patent Office
The Disciplinary Board of Appeal of the European Patent Office provided for in Article 5(c) of the Regulation on discipline for professional representatives of 21 October 1977 (hereinafter called the “Discipline Regulation”) hereby adopts under Article 25, paragraph 2, thereof, in lieu of the provisional Additional Rules of Procedure adopted on 30 November 1979 and approved by a decision of the Administrative Council of that date, the following Additional Rules of Procedure:
Business distribution scheme
The Chairman of the Disciplinary Board of Appeal shall, at the beginning of each working year, draw up a scheme for handling all appeals that may be filed during the year, designating the members responsible for the examination of all appeals and their alternates and including a rota drawn up in accordance with Article 10, paragraph 4, of the Discipline Regulation. The scheme may be amended during the working year.
Replacement of members
(1) Reasons for replacement by alternates shall, in particular, include conflicting interests, sickness, excessive workload and commitments which cannot be avoided.
(2) Any member requesting to be replaced by an alternate shall inform the Chairman of the Disciplinary Board of Appeal of his unavailability without delay.
(3) The Chairman of the Disciplinary Board of Appeal may designate another legally qualified member of the Disciplinary Board of Appeal to replace him or her as Chairman in a particular appeal in accordance with the business distribution scheme.
Exclusion and objection
(1) If the Disciplinary Board of Appeal has knowledge of a possible reason for exclusion or objection which does not originate from the member himself or from any party to the proceedings, then the Disciplinary Board of Appeal shall decide as to the action to be taken without the participation of the member concerned. For the purpose of taking this decision, the member concerned shall be replaced by his alternate.
(2) The member concerned shall be invited to present his comments as to whether there is a reason for exclusion.
(3) Before a decision is taken on the exclusion of a member, there shall be no further proceedings in the case.
A Registrar to the Boards of Appeal of the European Patent Office shall act as Registrar to the Disciplinary Board of Appeal. A further employee of the European Patent Office shall be appointed by the Chairman of the Disciplinary Board of Appeal to act as deputy Registrar where the Registrar is unable to act.
(1) The Chairman of the Disciplinary Board of Appeal shall for each appeal designate a legally qualified member, of himself, as rapporteur.
(2) The rapporteur may conduct preparatory inquiries in accordance with Articles 15 and 25, paragraph 1, of the Discipline Regulation; he shall prepare draft communications, carry out other preliminary work and draft decisions.
(3) Draft communications and decisions shall be sent to the other members of the Disciplinary Board of Appeal, who shall either approve them or make suggestions for amendment. If no agreement can be reached by this means, the Board shall meet to decide jointly on the final text.
(4) Communications shall be signed by the rapporteur on behalf of the Disciplinary Board of Appeal.
(5) The rapporteur shall make the preparations for meetings of the Disciplinary Board of Appeal and for oral proceedings. He will set out the issues that need to be determined and, if necessary, will send a communication to the parties to this effect.
(6) If the rapporteur considers that this knowledge of the language of the proceedings is insufficient for drafting communications or decisions, he may draft these in one of the other official languages of the European Patent Office. The drafts shall be translated by the European Patent Office into the language of the proceedings and the translations shall be checked by the rapporteur or by another member of the Disciplinary Board of Appeal.
Filing of an appeal
(1) A notice of appeal shall contain the name and address of the appellant and shall identify the decision appealed against and shall state which parts of the decision are appealed against or whether the whole decision is appealed against and the relief which the appellant seeks. It shall be signed by the appellant or by his representative. A representative signing a notice of appeal shall produce his written authorisation to act on behalf of the appellant.
(2) A notice of appeal and any written statement setting out the grounds of appeal may be filed by facsimile but a signed document reproducing the contents of every such notice and statement shall be filed within two weeks of the receipt of the facsimile.
Transmission of appeal documents
(1) The Chairman of the Disciplinary Board of Appeal shall cause a copy of every notice of appeal and statement of grounds filed by a professional representative to be sent to the President of the Council of the Institute of Professional Representatives, the President of the European Patent Office and the Chairman of the Disciplinary Body against whose decision the appeal has been lodged.
(2) The President of the Council of the Institute of Professional Representatives and the President of the European Patent Office respectively shall ensure that a copy of every notice of appeal and statement of grounds filed by himself is sent direct to the professional representative concerned or to his representative.
(1) Minutes of oral proceedings and of the taking of evidence shall be drawn up by the Registrar or such other employee of the European Patent Office as the Chairman of the Disciplinary Board of Appeal may nominate. Rule 124 EPC shall apply mutatis mutandis to the taking of such minutes.
(2) The Chairman of the Disciplinary Board of Appeal may direct that tape recordings of any oral evidence and of any oral statements may be made in addition to minutes of such evidence and statements.
Language of the proceedings
(1) The language of the proceedings shall be the official language of the European Patent Office in which the proceedings were conducted before the Disciplinary Body whose decision is appealed against but Rule 4 EPC shall apply mutatis mutandis to proceedings before the Disciplinary Board of Appeal.
(2) If oral proceedings are to take place and, at least two weeks before the date laid down for such proceedings, the professional representative concerned requests interpretation into and from his own language, the Chairman of the Board shall make the necessary arrangements.
(3) If the professional representative concerned so requires, he shall receive translations into his own language of all documents relating to his case and he may defend himself in his own language.
Change in the composition of the Board
(1) If the composition of the Disciplinary Board of Appeal is changed after oral proceedings, each party concerned shall be informed that, at his request, fresh oral proceedings shall be held before the Disciplinary Board of Appeal in its new composition. Fresh oral proceedings shall also be held if so requested by the new member and if the other members of the Disciplinary Board of Appeal have given their agreement.
(2) The new member shall be bound to the same extent as the other members by an interim decision which has already been taken.
(3) If, when the Board has already reached a final decision, a member of the Board is unable to act, he shall not be replaced by his alternate. If the Chairman is unable to act, the legally qualified member of the Board having the longer service on the Board, or in the case where members have the same length of service, the elder member, shall sign the decision on behalf of the Chairman.
Consolidation of appeal proceedings
(1) If several appeals are filed from a decision, these appeals shall be considered in the same proceedings.
(2) If appeals are filed from separate decisions and are designated to be considered by the Disciplinary Board of Appeal in a common composition, the Board may deal with these appeals in consolidated proceedings with the consent of the parties.
Remission to the Disciplinary Committee or the Disciplinary Board or the Examination Board
If fundamental deficiencies are apparent in proceedings before the Disciplinary Body whose decision is under appeal or before the Examination Board, the Disciplinary Board of Appeal shall remit a case to that Body or Board, unless special reasons present themselves for doing otherwise.
(1) If oral proceedings are to take place, the Disciplinary Board of Appeal shall endeavour to ensure that all relevant information and documents have been provided before the hearing.
(2) The Board may send with the summons to oral proceedings a communication drawing attention to matters which seem to be of special significance, or to the fact that questions appear no longer to be contentious, or containing other observations that may help concentration on essentials during the oral proceedings.
(3) If oral proceedings take place, the Board shall endeavour to ensure that each case is ready for decision at the conclusion of the oral proceedings, unless there are special reasons to the contrary.
Communications to the parties
If, before a Decision is taken, the Disciplinary Board of Appeal deems it expedient to communicate with the parties concerned regarding a possible appreciation of substantive or legal matters, such communication shall be made in such a way as not to imply that the Board is in any way bound by it.
Deliberations preceding decisions
If the members of the Disciplinary Board of Appeal are not all of the same opinion, the Board shall meet to deliberate regarding the decision to be taken. No other person except the Registrar and any interpreters attending in accordance with Article 9 hereof may be present during deliberations of the Board.
Order of voting
(1) During the deliberations between members of the Disciplinary Board of Appeal, the rapporteur's opinion shall be heard first and, if the rapporteur is not the Chairman, the Chairman's last.
(2) If voting is necessary, votes shall be taken in the same sequence; even if the Chairman is the rapporteur, he shall vote last. Abstentions shall not be permitted.
Unless the effect of a decision is to uphold the dismissal of the matter or to remit the case as provided for in Article 12 hereof, the decision shall state which Rule of Professional Conduct has been violated and which, if any, recommendation made in accordance with Article 4, sub-paragraph (c), of the Regulation on the Establishment of an Institute of Professional Representatives before the European Patent Office, has not been observed. Rule 102 EPC shall apply mutatis mutandis.
Publication of decisions
It shall be within the discretionary power of the Disciplinary board of Appeal to publish decisions without, however, revealing the identity of the parties concerned or the complainant, unless they respectively consent to be named.
Entry into force
These Additional Rules of Procedure shall enter into force on the date on which they are approved by the Administrative Council of the European Patent Organisation. Simultaneously with their entry into force, the Additional Rules of Procedure of the Disciplinary Board of Appeal adopted by that Board on 30 November 1979 and approved by the Administrative Council of the European Patent Organisation by a decision of the same date shall cease to have effect.
Done at Munich, 9 April 1980.
For the Disciplinary Board of Appeal of the European Patent Office