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Case Law of the Boards of Appeal

 
 
5.2. Oral submissions by former members of the boards of appeal

In J 11/94 (OJ 1995, 596) the authorised representative was accompanied during oral proceedings by a former chairman of the Legal Board of Appeal who had retired about a year and a half previously. The professional representative requested permission for the former board member to make submissions in addition to his own arguments. The case referred to the Enlarged Board therefore encompassed the question whether special criteria applied to the exercise of a board's discretion in relation to a request for the making of additional oral submissions by a former board of appeal member.

The Enlarged Board noted in G 2/94 (OJ 1996, 401) that there was a potential conflict between what might be seen as a right of former board of appeal members to seek subsequent employment on the basis of their special knowledge by making oral submissions during proceedings before the EPO, and the need for proceedings before the EPO to be conducted free from any suspicion of partiality. The existence of such a potential conflict was well recognised in the context of national judicial systems where it was clear that persons accepting appointments as judges were subject to restrictions if they wished to work in private legal practice after having served as judges. The existence of such restrictions reflected the generally recognised principle of law that parties to legal proceedings were entitled to a fair hearing before judges who could not reasonably be suspected of partiality. It concluded that the above potential conflict had to be resolved with a view to avoiding any suspicion of partiality during the conduct of proceedings before the EPO. The public interest in the proper conduct of proceedings before the EPO had to prevail over the personal interests of former board of appeal members who wished to make oral submissions on behalf of parties to the proceedings.

It was therefore necessary to place restrictions on the admissibility of such oral submissions, at least for a reasonable period of time following termination of a person's appointment as a member of a board of appeal. In the absence of specific legislation, the point in time following termination of his or her appointment after which a former member of the boards of appeal might make oral submissions in proceedings before the board of appeal was a matter within the judicial discretion of the boards of appeal. The Enlarged Board found that during either ex parte or inter partes proceedings, a board of appeal should refuse permission for a former member of the boards of appeal to make oral submissions during oral proceedings before it, unless it was completely satisfied that a sufficient period of time had elapsed following termination of such former member's appointment to the boards of appeal, so that the board of appeal could not reasonably be suspected of partiality in deciding the case if it allowed such oral submissions to be made.

The board of appeal should normally refuse permission for a former member of the boards of appeal to make oral submissions during oral proceedings before it, until at least three years have elapsed following termination of the former member's appointment to the boards of appeal. After three years have elapsed, permission should be granted except in very special circumstances. Before the expiry of three years, there would normally be too great a risk that the public would consider the making of such submissions in oral proceedings to give an unfair advantage to the party on whose behalf a former member appeared.

T 585/06 dealt with the presence of a former member of the boards of appeal at the oral proceedings before the opposition division and acting as consultant of the patent proprietor (see Chapter IV.E.8.3.6 g) "Reimbursement of Appeal Fee - Partiality").