T 0900/02 vom 28.04.2004

I. A suspicion of partiality must inevitably arise if a member of an Opposition Division, or any other first instance body, first solicits and then accepts employment with a firm in which a partner or other employee is conducting a case pending before that member. The fact that this only occurred after the oral proceedings were held, and the decision if not the reasons known, makes no difference - to be above all suspicion of partiality, every member must avoid any such situation at any time during the proceedings. No-one can be seen as independent of both parties while in the employ of one of them. (See Reasons, paragraph 6)

2. That adaptation of a description is connected to the claims as maintained appears clear from the very term "adaptation" and it is inconceivable that the parties could or would expect anyone other than the same members of the Opposition Division who conducted the oral proceedings and made a decision on the claims to deal with the necessarily inter-related and dependent question of adapting the description. If for any reason (even quite acceptable and understandable reasons such as illness or retirement) the same three members are not available to deal with the description, then it must follow that the parties are to be offered new oral proceedings and that, without such an offer, both the use of a different composition to decide the description and the issue of two separate decisions signed by differently composed Opposition Divisions amount to fundamental deficiencies. (See Reasons, paragraph 13)

3. If delay were the only deficiency, the extreme length of that delay (three years and seven months between oral proceedings and issue of a written decision) and the consequent need to avoid further delay is a special reason why the case should not be remitted to the first instance under Article 10 RPBA. (See Reasons, paragraph 18)

4. If procedural deficiencies in first instance proceedings were so grave that the decision under appeal must be held invalid, that decision is thereby quashed and regarded as a nullity. In that event the case must be remitted to the first instance under Article 10 RPBA to ensure a procedurally proper first instance decision. (See Reasons, paragraphs 19 to 21)