3.2. Obligation to raise the objection immediately

Article 24(3) EPC states that an objection shall not be admissible if, while being aware of a reason for objection, the party has taken a procedural step. The boards have consistently noted that an objection on grounds of suspected partiality must be raised immediately after the party becomes aware of the reason for the objection. This principle is crucial to prevent potential abuse of the system (G 5/91, OJ 1992, 617). A "procedural step" may include such actions as filing letters, raising objections under R. 106 EPC or participating in parallel proceedings, as evidenced by inter alia T 49/11, T 568/17, and T 1677/11, where the timing and nature of procedural steps have significantly influenced the admissibility of objections.

In G 5/91 (OJ 1992, 617) the Enlarged Board stated that, although Art. 24(3) EPC 1973 was only applicable to appeal proceedings, an objection on the ground of suspected partiality could also be disregarded at first instance if it had not been raised immediately after the party had become aware of the reason for the objection (or if it was based on nationality). The system might otherwise be open to abuse.

In T 1020/06 of 28 November 2008 date: 2009-05-15 the board held that filing new requests after proceedings under Art. 24(4) EPC 1973 had been started did not render the partiality objection inadmissible.

In T 49/11 after having received the summons which had made the parties aware of the composition of the board, the respondent filed two letters with the board before raising the partiality objection. In the first letter, the respondent had expressed its intention to speak German at the oral proceedings. The board held that such a statement constituted a procedural step within the meaning of Art. 24(3), second sentence, EPC, because it was a formal notification under R. 4(1) EPC. The partiality objection was therefore rejected as inadmissible. After analysing the text of Art. 24(3), second sentence, EPC in the three official languages (Art. 177(1) EPC), the difference between Art. 24 EPC 2000 and Art. 24 EPC 1973, and the transitional provisions of the EPC 2000, the board stated that it would have come to the same result under the old and the new text of Art. 24(3) EPC.

In T 1677/11 the board noted that the respondents had been aware of the closely related parallel appeal T 1760/11 of 16 November 2012 date: 2012-11-16, which had been decided by a board in an identical composition one week previously, right from the beginning of the current appeal proceedings. Nevertheless, it was only after an adverse decision in that case had been announced that the respondents raised their objections of suspected partiality in the case at issue. The board stated that regardless of whether the respondents had taken a specific procedural step in the current appeal proceedings, they had not submitted their objection immediately after having become aware of the reasons. It held that, in view of the fact that the objections raised were linked to both appeals, attendance at oral proceedings in T 1760/11 date: 2012-11-16 had to be regarded, in the factual context of the case now at issue, as a procedural step within the meaning of Art. 24(3) EPC. Thus, the objections under Art. 24(3) EPC were rejected as inadmissible.

In T 49/15 respondent 4 argued that the board's decision to admit the appellant's new main request had been a prerequisite for its partiality objection because it had only been then that the appellant had been favoured. The board rejected this argument: a party did not have to be adversely affected by a board decision before it could cite suspected partiality as a reason for objection.

In T 2175/15 of 1 April 2022 date: 2022-04-01 the opponent made a second request for exclusion on grounds of partiality at the same time as, and not after, taking further procedural steps. According to Art. 24(3) EPC, an objection is not admissible if, while being aware of a reason for objection, the party has taken a procedural step. In the view of the competent board, the concurrent objection in question did not fall under Art. 24(3) EPC.

In T 2440/16 of 17 May 2022 date: 2022-05-17 the respondent had already expressed criticism of the statements in the board of appeal's communication and of the interlocutory decision, and had made various requests in this regard, without, however, making an objection on the grounds of suspected partiality. The board held that filing requests was a procedural act within the meaning of Art. 24(3), second sentence, EPC, as its purpose was to initiate a decision-making process by the board.

In T 568/17 the board, with reference to G 1/91, held that if the appellant in the case in hand had wished to challenge the composition of the examining division because of the examiner's earlier actions during the international phase, it should have done so in the European regional phase when it became aware of that composition.

In T 1656/17, although the appellant claimed that it had not taken any procedural steps while being aware of a reason for objection on grounds of suspected partiality, it had filed an objection under R. 106 EPC at the end of the oral proceedings. 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 became 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 G 1/21 of 28 May 2021 date: 2021-05-28 the Enlarged Board considered that the appellant's third objection was filed inadmissibly late. The appellant had argued that because it was held in the first interlocutory decision that the Chair of the Enlarged Board and a further member could be suspected of partiality, the members that participated in the panel with them would be "infected" by their biased views on the referral and therefore the suspicion of partiality also applied to them. The Enlarged Board stated that the risk of "infection" existed mainly before the filing of the first objection and the objection based on this circumstance could and should thus have been filed at that time. It was not credible that the risk of influencing other members only became a concern after the Enlarged Board had agreed with the appellant that its objection against the Chair was justified. The Enlarged Board likewise held that objections 2 and 4 were filed inadmissibly late. Both objections were based on circumstances that were known from the very start of the referral proceedings, and therefore could and should have been filed already at the time of filing the first objection at the latest.

In R 12/22 the Enlarged Board held that the right to be heard could also include the right to obtain information with a view to exercising the right to reject a new board member, if required, under Art. 24 EPC. The petitioner could have asked the member concerned relevant questions during the oral proceedings before the board of appeal. However, in its petition for review it had not pointed out any possible violations of Art. 24 EPC. Therefore, the Enlarged Board could not examine such submissions to identify a possible breach of the right to be heard.