5.3.2 Disqualifying partiality

Members of a board of appeal may be objected to by any party for one of the reasons under Art. 24(1) EPC, or if suspected of partiality (Art. 24(3) EPC). For the grounds for objection under Art. 24(1) EPC, see chapter III.J.5.1. For the "subjective" and "objective" test for partiality, see chapter III.J.1.5.

In T 261/88 of 16 February 1993 date: 1993-02-16, the board held that a disqualifying partiality presumed that there was a preconceived attitude on the part of a deciding person towards a party to the case. It was limited to situations where the opinion of a person responsible for taking decisions affecting the right of parties (e.g. a judge) was swayed by his attitude toward a party. Conversely, such a person would not be disqualified for having a certain tendency or holding a particular view on an issue (see also T 843/91 of 17 March 1993 date: 1993-03-17; T 1028/96date: 1999-09-15, OJ 2000, 475).

In T 843/91 of 17 March 1993 date: 1993-03-17 the board agreed with the view held in decision T 261/88 date: 1993-02-16 that disqualifying partiality presumed a preconceived attitude on the part of a deciding person towards a party. More precisely, in the board's view, partiality would be willingly to favour one party by granting it rights to which it was not entitled, or by intentionally disregarding the rights of the other party (see also T 954/98 of 9 December 1999 date: 1999-12-09). The question whether an objection to board members on the ground of suspected partiality was justified could only be decided in the light of the particular circumstances of each individual case (see G 5/91). The board found that, whatever their gravity, deficiencies, erroneous practices or procedural violations could not be regarded as a basis for an objection on the ground of partiality if they did not result from such a preconceived attitude or deliberate intention (see also T 1257/14 of 5 February 2018 date: 2018-02-05).

In T 792/12 the appellant contended that the board did not want to listen to his arguments and appeared to lack impartiality because it interrupted him on several occasions. The board rejected this contention and referred to Art. 15(4) RPBA 2007, according to which the chairman of the board presides over the oral proceedings and ensures their fair, orderly and efficient conduct. A chairman may interject in a party's submissions to ensure that the proceedings are efficiently conducted, in particular to avoid a party repeating arguments. In the same way, a chairman, or indeed any member of the board, may interrupt to ask questions which were, for example, considered important for reaching a decision.