4.4. Disqualifying partiality

In T 261/88 of 16 February 1993 date: 1993-02-16 the board stated that disqualifying partiality presumed that there was a preconceived attitude on the part of a deciding person towards a party to the case. When considering an allegation of partiality (in this case mainly based on the fact that the examiner was a former employee of the opponent), regard must be had to the particular facts of the case (cf. G 5/91). That the examiner's views differed from those held by the party was not disqualifying in itself. The board held that disqualifying partiality was limited to situations where the opinion of a person responsible for taking decisions affecting the right of parties was swayed by his attitude towards a party.

In T 900/02 the board stated that a suspicion of partiality inevitably arose if a member of an opposition division, or any other first-instance body, first solicited and then accepted employment with a firm in which a partner or other employee was conducting a case pending before that member. It stressed that, to be above all suspicion of partiality, every member had to avoid any such situation at any time during the proceedings. No-one could be seen as independent of both parties while in the employ of one of them. The board held that the second examiner's employment by the respondent's representative's firm was both a fundamental deficiency in the first-instance proceedings under Art. 10 RPBA 1980 and a substantial procedural violation under R. 67 EPC 1973.

In T 1055/05 the board decided that the examining division's refusal to minute the submissions of a party's representative during oral proceedings did not infringe the right to be heard or constitute grounds for suspecting partiality.

In T 710/15 the opposition division had rejected a new argument under Art. 114(2) EPC, which is only a basis for disregarding new facts or evidence. The board held that such an error of judgment did not prove the partiality of the Chair or the opposition division.

In T 568/17 the board noted that the examiner's communication had contained severe errors of judgment, but that this alone did not justify a suspicion of partiality. With reference to G 1/05 (OJ 2007, 362), the board acknowledged that evidence of actual partiality was not required for an objection of suspected partiality to succeed. However, the suspicion of partiality must be justified on an objective basis which could be verified by the board. A mere allegation of unspecified and undocumented "negative statements" did not suffice.

In T 2274/22 the board considered, by analogy with the possibility provided for in Art. 24(3), first sentence, EPC that objecting to an opposition division could be justified not only in cases of actual partiality but even where there was only a suspicion, i.e. appearance, of partiality. In the case in hand, that a party representative had been present (undisputedly by mistake) during the interpreter briefing was not a sufficient basis on its own for suspecting the opposition division of partiality, but this suspicion was justified by the way events had unfolded at the beginning of the oral proceedings. The opposition division had not only neglected to mention what had happened on its own initiative but – even after the opponent had intervened by explicitly pointing out that there might have been a procedural defect – had also failed to play an active part in investigating the matter. Instead, it had simply accepted the opponent's suggestion that it file a written summary (short minutes), but did not then go on to address its contents. Considered from an objective observer's perspective, all of this amounted to circumstances and grounds that contributed to an appearance that the opposition division had not been impartial.