9.2.7 Former board member acting as consultant for a party to the proceedings

In T 585/06 the board noted that at the time the former member of the boards of appeal had attended the oral proceedings before the opposition division he had ceased to be an EPO employee. By virtue of the fundamental principle of freedom to exercise a profession, there was nothing in principle to prevent him from working as a consultant in the field of patent law. Moreover, no provision of the EPO forbade work as consultant. The former member had not acted as an authorised representative but only as the patent proprietor's consultant. He had not addressed the opposition division, not even on the instructions of the representative of the respondent. This amounted to an important difference from the facts of case G 2/94, where a former member of the boards of appeal had presented his case before his former colleagues. In the case at issue, the former member had given only hints by whispering to the authorised representative, who had been absolutely free to accept them or not, but had not made any intervention of his own motion. The appellant's representative had agreed at the beginning of the oral proceedings to the former member's sitting beside and assisting the respondent's representative. Not even during the oral proceedings had any objection been made to his presence. The former member had obviously not been a member of the public as he had not sat at the back of the room. Furthermore, no substantiated reasons of partiality of the opposition division had been submitted by the appellant.

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