In the interlocutory decision R 12/09 of 3.12.2009, the request to exclude members of the Enlarged Board of Appeal under Art. 24 EPC was rejected as inadmissible - the members were alleged necessarily to have a personal interest due to their capacity as members of a technical board or the Legal Board of Appeal such that the suspicion of partiality 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 pre­existing 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. Accordingly, the dual function of such members could not, by itself, be a reason for objecting to or excluding them when it came to performing this task.

In R 16/10 the petitioner submitted that the wording of Art. 24(1) EPC, concerning the exclusion of members from a board under certain circumstances, included not only the specific situation where one of the members had represented a party in the case in question but also the general situation where a member had previously acted as representative of that party in any matter.

The Enlarged Board disagreed. While the English text (as amended under the EPC 2000) remained less clear than that of the other two versions, when read as a whole, it became unambiguously clear that it dealt with three separate cases each governed by the words "in a case in which". Further, this paragraph could not be given a different meaning in English to that in the two other languages. It was clearly stated in the German and French versions that the cause of exclusion related to the involvement in the particular case in question and not to any past representation.

In R 2/12 the objection of suspected partiality was derived exclusively from the text of the communication drafted by the rapporteur by which the petitioner was informed of the Enlarged Board's provisional opinion on the petition. The suspicion of partiality must be justified on an objective basis (following G 2/08 of 15.6.2009, unpublished). A reasonable onlooker considering the circumstances of the case would conclude that the party might have good reasons to doubt the impartiality of the member objected to (following G 1/05, OJ 2007, 362). The Enlarged Board found there was nothing in the communication which could justify any suspicion of partiality. It would be incompatible with an objective assessment of a case and with the principle of fair trial in inter partes proceedings, if a member of the boards could be 'deposed' on the ground that they did not opine in favour of a particular party right from the beginning of the proceedings.

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