2.4. Objection by a third party

In R 2/14 of 17 February 2015 the Enlarged Board stated that grounds for exclusion under Art. 24(1) EPC must be applied ex officio and may be raised by anyone, i.e. the parties, the board, or a third party. In addition to this, members of a board of appeal or of the Enlarged Board of Appeal may be objected to by any party for suspected partiality pursuant to Art. 24(3) EPC.

In G 2/08 of 15 June 2009 the Enlarged Board of Appeal noted that objections of suspicion of partiality were the monopoly of parties to the proceedings. However, under Art. 4(1) RPEBA, if the Enlarged Board of Appeal had knowledge of a possible reason for exclusion or objection which did not originate from a member himself or from any party to the proceedings, then the procedure of Art. 24(4) EPC was to be applied (see also Art. 3(1) RPBA 2007). When construing the meaning of the wording "possible reason for exclusion or objection", one had to bear in mind the following distinction: (a) grounds that may be raised ex officio according to Art. 24(1) EPC and (b) an objection of partiality, reserved to the parties.

The Enlarged Board stated it might appear appropriate not to proceed any further with a complaint if an alleged reason for exclusion or objection not originating from a party to the proceedings or the Enlarged Board of Appeal itself would amount to an abuse of procedure. That would be the case where a complaint was not substantiated at all, ignored established case law, or had been filed maliciously in order to damage a member's reputation or with the purpose of delaying the proceedings, this list not being exhaustive.

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