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Case Law of the Boards of Appeal

5. Objection by other board members of the same board of appeal

In J 15/04 (cf. above) the notices of self-recusation of the two legal members contained information concerning a possible reason for exclusion of the chairman (which did not originate from the chairman himself). The board stated that, according to Art. 24(4) in conjunction with Art. 24 (2) and (3) EPC 1973, for one of the originally appointed members of the board to be replaced by his alternate, the individual member had to have informed the board that he should not take part in the appeal or have been objected to by one of the parties. Thus, only the replacement of the originally appointed members who submitted notices of self-recusation was justified under Art. 24(2) EPC 1973. However, according to Art. 3(1) RPBA, the application of Art. 24(4) EPC 1973 extended to cases in which the board had knowledge of a possible reason for exclusion or objection which did not originate from a member himself or from any party to the proceedings. Thus, Art. 3 RPBA established the possibility of an objection by other members of the same board. Thus, the board held that, in the case before it, the replacement of the originally appointed chairman by an alternate chairman for the purposes of taking a decision under Art. 24(4) EPC 1973 was justified under Art. 3(1) RPBA.