T 0261/88 of 16.02.1993
- European Case Law Identifier
- ECLI:EP:BA:1993:T026188.19930216
- Date of decision
- 16 February 1993
- Case number
- T 0261/88
- Petition for review of
- -
- Application number
- 81201022.1
- IPC class
- G11B 7/00
- Language of proceedings
- English
- Distribution
- Published in the EPO's Official Journal (A)
- Download
- Decision in English
- OJ versions
- No OJ links found
- Other decisions for this case
- T 0261/88 Décision susceptible de recours 1991-03-28T 0261/88 Beschwerdefähige Entscheidung 1991-03-28T 0261/88 Appealable decision 1991-03-28T 0261/88 Appealable decision 1991-03-28
- Abstracts for this decision
- -
- Application title
- Apparatus and method for writing a signal information track on a disc
- Applicant name
- Discovision
- Opponent name
- N.V. Philips
- Board
- 3.5.02
- Headnote
- -
- Relevant legal provisions
- European Patent Convention Art 106(3) 1973European Patent Convention Art 111(1) 1973European Patent Convention Art 113(1) 1973European Patent Convention Art 24 1973European Patent Convention Art 56 1973European Patent Convention R 58(4) 1973European Patent Convention R 67 1973
- Keywords
- Member of Opposition Division disqualified by partiality (no)
Reimbursement of appeal fee (no) - substantial procedural violation(no)
Inventive step (yes) - formulation of the problem contributing to inventive step - Catchword
- 1. Disqualifying partiality presumes a preconceived attitude on the part of a deciding person (in this case the first Examiner) towards a party (in this case the Patentee) to the case. The fact that the views held on the issues of the case by the Examiner differ from those held by the party is in itself not disqualifying. The remedy to be used in such a situation is the appeal.
2. When considering an allegation of partiality (in this case mainly based on the fact that the Examiner was a former employee of the Opponent in the case), regard must be had to the particular facts of the case (cf. G 5/91). The content of the file must therefore be examined to find out whether there are major deficiencies in the reasoning underlying the decision to such an extent that there is reason to believe that they were the result of a preconceived attitude.
3. When the content of the file does not go beyond a normal discussion between the EPO and a party and there is nothing manifestly unreasonable to be found in the reasoning, disqualifying partiality cannot be concluded.
4. The length of time between the Examiner's last action for his former employer and his first action as Examiner in a particular case to which this employer is a party may be important, since any residual bias which may be caused by this employment would gradually fade away with time. Given the relatively long period of 21 months in this respect, there is no good reason to suspect that the Examiner at the time in question was unduly influenced by his previous employment.
ORDER
For these reasons, it is decided that:
1. The decision under appeal is set aside.
2. The case is remitted to the first instance with the order to maintain the patent as amended on the basis of the documents as mentioned in paragraph XII, with the minor amendment regarding a reference numeral as mentioned in paragraph 5.2.