Objection of a member of a board of appeal of the EPO
15.02.2007
This decision is about the grounds of objection of a member of a Board of Appeal. The EPC's article related to this point of law is the Art. 24 EPC
Two cases are studied:- the first case is the one of a member of the Enlarged Board of Appeal who writes a communication (notice) of withdrawal to the Board. The ground mentioned by this member is the following: her husband and her son are partners in a law firm which defends one of the parties in the decision.If the ground generally raised, pursuant article 24(1) EPC, is a close family relationship with one of the parties, if they have previously been involved as representatives of one of the parties or if they took part in the decision under appeal, the ground put forward by this member is retained sufficient for a possible suspicion of partiality.This member is thus replaced by the Enlarged Board of Appeal.- the other case studied by the Enlarged Board of Appeal is the one of a member objected by one of the parties, on the ground that he would have taken part in a decision which went into one of the points submitted to the decision under appeal, the ground of this prior decision laking clarity and legal basis, for the party requesting the objection.This member cannot be objected pursuant to article 24(1) EPC, therefore it is article 24(3) EPC that must be applied. According to this article, it suffices that there is a suspicion of partiality. As for the Enlarged Board of Appeal, the only fact of having taken position in a prior decision on a particular point of law is not enough to suspect a member of partiality in a subsequent decision, dealing with this same point of law.This member should have publicly expressed his view on that specific point of law, or he should have a preconceived attitude/mind on this issue.The Enlarged Board of Appeal stresses that the decisions of the Boards of Appeal are taken in a collegiate way, and that when there must be a vote on a point of law, this vote is secrete. Unless the member conspicuously expresses his view, it is hard to assign him a view on a particular point of law.Having taken part in a decision with no link with the decision under appeal, on a particular point of law, does not constitute a sufficient ground of suspicion of partiality for the Board.The objection is rejected for this member.
