5.4. Comments of the board member concerned

Under Art. 3(2) RPBA (see also Art. 3(2) RPBA 2007, and for the Enlarged Board Art. 4(2) RPEBA) the member concerned is to be invited to present comments as to whether there is a reason for exclusion or objection (as to the scope of Art. 3(2) RPBA 2003 and Art. 4(2) RPEBA, see T 985/01 of 18 March 2005 date: 2005-03-18).

In T 1938/09 of 2 October 2014 date: 2014-10-02 the appellant referred to R 19/12 of 25 April 2014 date: 2014-04-25 and objected to the Chair of the board, arguing he was a potential deputy for the Vice-President of the EPO Directorate-General 3 (VP3). The Chair had not provided details, as requested by the appellant, on whether he had deputised for VP3. The board acknowledged that there might be cases where a board would not be in a position to decide on the objection without having received the necessary information from the member objected to. However, in the case at hand the board deemed it irrelevant for the question of impartiality whether the Chair had deputised for VP3 and refused the partiality objection. The provision of the requested details would only have been necessary if the board in its composition at that time had considered that these details were relevant for the decision to be taken.

In T 2440/16 of 17 May 2022 date: 2022-05-17 the board found that the respondent's belief that the comments submitted in the case at hand justified a suspicion of partiality was based on a clearly incorrect interpretation of the sense and purpose of the comments of the objected to member. There are no legal provisions placing formal constraints or limits on comments within the meaning of Art. 3(2) RPBA (see also T 190/03, OJ 2006, 502). Furthermore, it is not true that a rejected member always has to present comments. The sweeping assertion that an objected to member must comment on all internal and external facts put forward in the objection was therefore unsuitable to justify suspected partiality and thus inadmissible.