2.3. Objection by a party to a board member or members

Most partiality proceedings are initiated by a party objecting to a board member under Art. 24(3) EPC. According to the established jurisprudence of the boards of appeal, if a party is to receive a fair hearing before a tribunal, such a party should have no reasonable ground (on an objective basis) to suspect that any member of the tribunal is partial or prejudiced in relation to deciding the case (cf. G 5/91, OJ 1992, 617; G 1/05, OJ 2007, 362; T 433/93, OJ 1997, 509; T 95/04, T 283/03, T 1193/02).

Art. 24(3) EPC states that "members" of a board of appeal may be objected to by any party. In T 843/91 (OJ 1994, 818) the board held that this implied that all the members of a board may be objected to, together or separately (see also T 1020/06 of 12 November 2008 date: 2008-11-28 in which all the members of the original board were replaced pursuant to Art. 24(4), second sentence, EPC 1973).

In T 1656/17, even though a large part of the allegations of suspected partiality concerned the behaviour and statements of the Chair and not of the two other members of the board, the alternate board understood the substantiated allegations to apply equally to the two other members. According to the board, 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. Thus, in the case in hand, the objecting party could legitimately assume that the actions of the Chair were supported by the other two members.