Suspected Partiality Of The EPO Opposition Division

A recent decision from the EPO Board of Appeals, T 1647/15, deals with, amongst other things, the issue of suspected partiality of a member of the Opposition Division, in this case the chairman.

The present decision relates to EP1577159, and in particular to the events that occurred during oral proceedings before the Opposition Division. The parties involved during the oral proceedings were the patent proprietor, Nooteboom Group, and three opponents, Faymonville, MEUSBURGER Fahrzeugbau, and Scheuerle Fahrzeugfabrik.

All parties to the first instance proceedings appealed against the decision of the Opposition Division to maintain the European patent in amended form. In particular, all opponents requested, amongst other requests, that the decision of the Opposition Division be set aside for bias of at least one member of the Opposition Division and that the case be remitted for rehearing before an Opposition Division in a different composition. The opponents further argued that the suspected member should not have participated in the decision regarding their own partiality, and that a different Opposition Division should have taken a decision on the objection of partiality. The opponents also requested that a number of questions be referred to the Enlarged Board of Appeal, where the questions generally related to partiality of a member of the Opposition Division and whether a decision of an Opposition Division should be set aside when a member of the Division was objected to under Article 24 (3) EPC.

Regarding the incident that occurred during the oral proceedings, it was alleged that during the second day of the oral proceedings, the representative of one of the opponents was interrupted by the chairman of the Division, who said, "Shut your mouth" and "Don't speak any more". It was further alleged that the chairman showed no regret in what he said, and that he would not "take anything back". The opponents argued that this was a clear indication of a personal aversion of the chairman against the representative of the opponent, and that this personal animosity negatively affected the ability of the chairman to hear the opponent with an objective judicial mind.

In the Board of Appeal's decision, and with regard to whether Article 24(3) EPC can be applied to members of the Opposition Division, the Board referred to Decision G 5/91 of the Enlarged Board of Appeal (OJ EPO 1992, 617), which indicates that it was a conscious choice of the legislator...