In interlocutory decision R 12/09, the board observed that an objection on the grounds of suspected partiality under Art. 24 EPC could not be based solely on the fact that a member of the Enlarged Board of Appeal had already taken a position on the matter at issue in the referral as a member of an ordinary board of appeal (see G 1/05; G 2/08). In R 12/09, the petitioner had objected to the Enlarged Board members under Art. 24(3) EPC, alleging that they inevitably had a personal interest owing to their capacity as members of a technical board or the Legal Board of Appeal and that, accordingly, a suspicion of partiality in their settlement of the case necessarily arose.
The Enlarged Board held that Art. 112a EPC's legislative history showed that petition for review was intended to serve as an extraordinary remedy for a small number of very specific fundamental procedural defects. The legislator had consciously decided to allocate the task of hearing such petitions to the Enlarged Board as a pre-existing body with appointed members and, when doing so, had been fully aware that those members were for the most part also experienced members of technical boards or the Legal Board of Appeal. Since at the time of the relevant legislative procedure, many of the legally-qualified and all of the technically-qualified members of the Enlarged Board had also been members of technical boards or the Legal Board of Appeal, the legislator could only have intended that those members also be deployed in procedures under Art. 112a EPC. Even if one were, like the petitioner, to consider the procedures for processing petitions for review under Art. 112a EPC inadequate, they were at any rate in line with the legislator's intention.
For the board, it was clear that, in allocating the task of hearing such petitions to members of the technical boards and of the Legal Board of Appeal in their capacity as members of the Enlarged Board, the legislator had demonstrated its intention that these members' dual function should not, by itself, constitute a reason for objecting to or excluding them when it came to performing this task. The objection was thus dismissed as inadmissible.
With regard to other cases on suspected partiality of members of the Enlarged Board of Appeal in petition for review cases, reference should be made to Chapter IV.E.9.2.8 "Breach of Article 24 EPC under Article 112a(2)(a) EPC".