In T 1020/06 (of 28.11.2008) the board in the substitute composition considered whether there was a ground which could justify a suspicion of partiality within the meaning of Art. 24(3), first sentence, EPC 1973 if all members of a technical board of appeal had participated in a previous decision taken by a board in the same composition and involving similar legal or factual questions. The appellant stated that the widely overlapping matter under discussion raised the serious suspicion that the members of the original board would not take a fresh, neutral and unbiased view on these questions.
The board noted that "it is, however, also commonly recognised in the jurisprudence of the boards of appeal and elsewhere that the 'suspicion' by the party must be justified on an objective basis" and that "purely subjective impressions or vague suspicions are not enough" (G 1/05, OJ 2007, 362, point 20 of the Reasons). Further, it found that there was no provision in the RPBA or the Business Distribution Scheme (BDS) for a member to be excluded from participation in an appeal case pending before a technical board if that member had already dealt with a similar legal or factual question in another case pending before the same or another technical board. On the contrary, Art. 7 BDS stipulated that, where appeals pending before the board were closely linked the chairman could order that the board decide in the same composition. It followed that, to the extent that participation in appeal cases which were closely linked in that they involved similar legal or factual questions was not excluded by the RPBA and BDS, an objection of partiality could not be based on that fact alone. The board concluded from the above that the circumstances of the case and the conduct of the original board members did not give rise to a justified fear of partiality. In its view, on an objective basis there was nothing to justify any suspicion that any of the original members might have any kind of preconceived attitude towards the questions at issue in the case in point. For these reasons, in this particular instance the objections of partiality under Art. 24(3) EPC 1973 against the original board members were rejected.