Case law - exclusion and objection

Question 1

G5/91 Suspected partiality of a member of an Opposition Division

Answer 1

Although Article 24 EPC applies only to members of the Boards of Appeal and of the Enlarged Board of Appeal, the requirement of impartiality applies in principle also to employees of the departments of first instance of the EPO taking part in decision-making activities affecting the rights of any party.

There is no legal basis under the EPC for any separate appeal against an order of a director of a
department of first instance such as an Opposition Division rejecting an objection to a member of the division on the ground of suspected partiality. However, the composition of the Opposition Division may be challenged on such grounds in an appeal against the final decision of the division or against an interlocutory decision under Article 106(3) EPC allowing separate appeal.

Question 2

G1/05 (interlocutory decision) Exclusion and objection of Board Members

Answer 2

There is no reasonable suspicion of partiality against a member of the Enlarged Board of Appeal within the meaning of Article 24(3), first sentence, EPC merely because a member has previously adopted a position on a matter in a prior decision of a Board of Appeal in which the Board member concerned participated. Only if there are specific circumstances throwing doubt on the ability of a member of the Enlarged Board of Appeal to approach the parties’ submissions with an open mind on a later occasion will an objectively justified reason for exclusion exist.

If a member of a Board of Appeal in a notice of withdrawal identifies a ground that may by its nature constitute a possible ground for an objection of partiality, the Board member concerned should normally be replaced.