Curious Procedure Becomes More Interesting

Whatever one’s views on why so many petitions for review are unsuccessful (some of mine are here), the high failure rate is undeniable. So when only the fifth successful petition emerged in R 16/13, it offered a small ray of hope for the future of this curious “after the appeal but not another appeal” procedure.

The case is in German and I shall not attempt to translate it here. A good summary in English can be found in the article at page 100 of the latest edition of “epi Information”. It is enough for present purposes to say that the Enlarged Board found that, as has so often been alleged but not previously found, the Board of Appeal had not disclosed its view on a key item of evidence before giving its decision. It should have told the petitioner its view and allowed a chance to address it. As the author of that article, Dr. Eva Ehlich, observes

“For a petition…. to be allowable, the decisive criterion is the amount of information – or to use the wording of Art. 113 EPC: the level of detail of the grounds or evidence on which the decision is based – to which a party has a procedural entitlement before the decision is reached, and thus affects the definition of and the specific form given to the term “grounds” in Article 113(1) EPC.”

A frequent problem is that, while the petitioner might know that he does not have sufficient information, he does not actually know the missing information, at least in sufficient detail. Dr. Ehlich suggests that this might be resolved by reversing the burden of proof so that a petition should be allowed unless it can be established beyond doubt that the petitioner had positive knowledge of the grounds in question. That is an interesting proposal which could, in principle, be adopted by the Enlarged Board in its case-law and does not need any form of legislation.

While the Enlarged Board has not gone that far yet, it has addressed one question of evidence in petition cases and produced a principle which favours petitioners. In R 2/14, a decision declining to replace its chairman after an objection of possible bias, the Enlarged Board made clear that requests for information should be made of the “competent bodies” in the preparation of partiality objections and it is clear that the Enlarged Board expects that those requests should be answered with the supply of information. However, as the IPKat Blog has deduced, it is alleged in the pending petition R 2/15 that this principle had not been followed in the decision under review.

Petitions for review have just become much more interesting….

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