T 0190/03 (Partiality/XXX) vom 18.03.2005

I. The existence of partiality under Article 24 EPC can be determined on the basis of the following two tests:

Firstly, a "subjective" test requiring proof of actual partiality of the member concerned.

Secondly, an "objective" test where the deciding Board judges whether any circumstances of the case give rise to an objectively justified fear of partiality (point 9).

II. In the absence of exceptional circumstances, any procedural error in admitting requests would relate simply to flaws in the steps that the Board necessarily has to take to reach a decision. Thus, under the objective test, not admitting amended claims, regardless of whether the Board has correctly used its power or discretion to do so, does not give rise to any objectively justified fear of partiality (point 20).

III. At the beginning of an appeal case where a properly constituted Board has not performed a procedural step, there are generally no circumstances that give rise to an objectively justified fear of partiality based on circumstances in a previous case (point 22).

IV. The mere fact that the member concerned gives reasons and explanations of the reasons, which go beyond the facts, in response to an invitation under Article 3(2) RPBA does not give rise to an objectively justified fear of partiality under the objective test (point 27).