9.5.12 Partiality

In T 900/02 the board stated that a suspicion of partiality must inevitably arise if a member of an opposition division, or any other first instance body, first solicits and then accepts employment with a firm in which a partner or other employee is conducting a case pending before that member, even if it occurred after oral proceedings had been held. This amounted to a substantial procedural violation.

In T 585/06 the appellant (opponent) considered that the presence of a former member of the boards of appeal, as a consultant of the patent proprietor, at the oral proceedings before the opposition division had led to partiality of the opposition division. The former member did not address the opposition division, not even under the control of the representative of the respondent. This amounted to an important difference to the facts underlying case G 2/94. The authorised representative was absolutely free whether to accept the hints whispered by the former member, who did not make any intervention of his own motion. The appellant's representative accepted at the beginning of the oral proceedings that the former member would sit beside the representative of the respondent and assist him. Even during the oral proceedings no objection was made to his presence. Moreover, no substantiated reasons of partiality of the opposition division were submitted by the appellant. The request for the reimbursement of the appeal fee was refused.

In T 1647/15 the minutes indicated that the representative of opponent III was interrupted by the chairman during the oral proceedings before the opposition division with: "Shut your mouth" and "Don't talk any more". The board held that the ability of the chairman to hear opponent III with an objective judicial mind could be perceived as having been affected and held that the objection of suspected partiality was justified. The board found it equitable to reimburse the appeal fee paid by each of the oppponents I to III.

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