3.3. Objection must be reasoned and substantiated

In T 1028/96 (OJ 2000, 475) the board stated that, in addition to the two admissibility conditions prescribed in Art. 24(3) EPC, the EPC required, as a general rule, that objections be reasoned, i.e. indicated facts and arguments which were alleged to support such an objection. From this requirement it followed, firstly, that an objection based on purely subjective unreasonable doubts should be rejected as inadmissible. It also followed that if facts and arguments filed could not support the objection of suspected partiality raised, the objection was likewise inadmissible (see also T 355/13, and T 2175/15 of 11 June 2024 date: 2024-06-11).

In R 12/09 of 3 December 2009 date: 2009-12-03 the Enlarged Board referred to T 1028/96 (OJ 2000, 475) and also held that, when determining admissibility, it had to be established whether the objection had been duly substantiated. However, according to the Enlarged Board, this merely meant ascertaining whether it met the minimum standard for objective reasoning, and not whether that reasoning was also persuasive (see also T 2440/16 of 17 May 2022 date: 2022-05-17).

In T 1760/11 of 13 November 2012 date: 2012-11-13 the board noted that no reasons were given as to why the fact that the Chair had been employed at Cabinet Regimbeau over thirteen years previously should bias him against respondent 6 or any of the other parties, regardless of whether or not he had in fact acted for respondent 6 during his time there. Such vague and unsubstantiated allegations could not support an objection of suspected partiality

In G 1/21 of 28 May 2021 date: 2021-05-28 the Enlarged Board found that objections for suspicion of partiality against two regular members of the panel who had previously been objected to in earlier interlocutory proceedings (G 1/21 of 17 May 2021 date: 2021-05-17) did not comply with the minimum standard for objective reasoning and substantiation. It was not based on facts ("we have reason to believe...") and the arguments were based on speculation. It was for the party who filed an objection to substantiate it with relevant facts and arguments (see also T 2078/17).

The Enlarged Board also noted that objections 1, 2 and 4 were not person specific and were very general; they could apply to any board member who took part in internal discussions or meetings with stakeholders (objection 1), all members of the Enlarged Board (objection 2), or all internal members of the Enlarged Board and the Boards of Appeal (objection 4). It found it questionable whether such general und unspecified objections could be seen as an objection of partiality within the meaning of Art. 24 EPC. With regard to Objection 1, merely limiting the objection to certain members was not sufficient to make the objection reasoned with respect to the members concerned. With regard to objection 4 – which was based on the fact that the re-appointment of members of the Boards of Appeal and the Enlarged Board was inter alia dependent on a positive opinion from the President of the Boards of Appeal, who was also the Chair of the Enlarged Board – the Enlarged Board noted that the mechanism of Art. 24 EPC was not meant for objections that were exclusively based on such general, institutional concerns and was also not capable of alleviating these concerns (as it also found with regard to objection 2). The use of Art. 24 EPC for the institutional concerns expressed by the appellant, when taken to the extreme, could potentially lead to a complete paralysis of the present proceedings.

In T 2440/16 of 17 May 2022 date: 2022-05-17 the board held that an objection which was not supported by the facts in the proceedings because they were clearly unsuitable from a legal point of view to substantiate a suspicion of partiality was inadmissible. This was the case if the grounds for the request were based on a manifestly incorrect interpretation of procedural rules and obligations (see T 1028/96, OJ 2000, 475; R 12/09 of 3 December 2009 date: 2009-12-03; T 355/13).