Zusammenfassung von EPC2000 Art 024 für die Entscheidung T1656/17 vom 12.01.2023

In T 1656/17 the appellant raised an objection of suspected partiality against all members of the board under Art. 24(3), first sentence, EPC. The objection was deemed admissible and an alternate board was formed. A technically qualified member of the alternate board then informed it in a notice of exclusion that they considered that they should not take part in the appeal proceedings as there existed a close family relationship between them and a person who had been involved in the first-instance proceedings. As per G 1/05, if a member of a board of appeal in a notice of withdrawal under Art. 24(2) EPC gives a ground which could by its nature constitute a possible ground for an objection of partiality, that ground should normally be respected. It can be expected that the member submitting the notice knows best whether a possible suspicion of partiality might arise (see J 15/04). The alternate board decided that in the case in hand the technically qualified member concerned should be replaced. It was at least arguable that a board member who had family ties to a person involved in the first-instance proceedings might have an interest in confirming the findings of those proceedings and could therefore appear to be biased. Following the replacement of said member, the alternate board in its final composition was competent to decide on the appellant's objection of suspected partiality. In its main request, the appellant had raised an objection against all three members of the original board, and in its auxiliary request, against only the chair. A large part of the appellant's allegations of suspected partiality concerned the behaviour and statements of the chair and not of the two other members of the original board. However, the board stated it was clear that a chair, when presiding over the oral proceedings, was normally acting after consultation with or with the tacit consent of the other board members. The appellant could therefore legitimately assume that the actions of the chair, in this case, were supported by the other two members. An objection on the ground of suspected partiality is not admissible if, while being aware of a reason for objection, the party has taken a procedural step (Art. 24(3), second sentence, EPC). Although the appellant claimed that it had not taken any procedural steps while being aware of a reason for objection, it had filed an objection under R. 106 EPC at the end of the oral proceedings on 21 October 2022. In the board's view, such an objection was without doubt to be classed as a procedural step within the meaning of Art. 24(3), second sentence, EPC. The appellant's objection of suspected partiality was, however, not limited to facts occurring before the objection under R. 106 EPC was filed. It was based on a chain of events that also encompassed facts that occurred after this objection had been filed. Moreover, the board understood the appellant's submission to mean that it was not until all the events had occurred that it had become aware of the original board's biased attitude against it. Consequently, the board considered that the filing of the objection under R. 106 EPC did not render the subsequent objection of suspected partiality inadmissible. In examining the appellant's request, the board observed that the appellant had not presented any proof of actual partiality of the three members of the original board. Rather, its case was based on circumstances which in its view gave rise to an objectively justified fear of partiality. This was to be examined in an objective test. The board was not convinced that the described chain of events as a whole could give rise to a suspicion of partiality. For this to be the case, a certain preconceived attitude would have to be at least partially discernible or inherent in each or some of the events. However, none of the single chain links referred to by the appellant contained elements which could suggest that the original board was influenced in its decision making by extraneous considerations or prejudices. As a result, the appellant's suspicion of partiality was not objectively justified regarding either the chair or the other two members of the original board.