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 for Article 24(3) EPC to only apply to members of the Boards of Appeal and the Enlarged Board of Appeal and not to employees of the first instance departments such as the Opposition Divisions. As such, the Board argue that Article 24(3) EPC is not applicable to the Opposition Division, and that it was not appropriate to refer the opponents’ legal questions that related to Article 24(3) EPC to the Enlarged Board of Appeal.

Furthermore, the Board argued that G 5/91 indicates that it is not prohibited for an Opposition Division to decide on objections against its partiality. While the Board indicated that it is aware of the basic principle of procedural law in the Contracting States of the EPC (Article 125 EPC) that all members of a tribunal must be above any suspicion of bias, the Board noted that the proceedings before an Opposition Division are not judicial in nature but have purely administrative character. As such, a member of an Opposition Division who has been objected to for suspicion of partiality is under no obligation to step aside from taking part in a decision on the matter.

However, the Board did agree that there was a fundamental procedural deficiency following the chairman’s outburst. In their decision, the Board of Appeal noted that the chairman of the Opposition Division was repeatedly interrupted by the opponent, and that the strong language used was “a spontaneous outburst of a stressed chairman seeking to restore order”. However, the Board formed the view that the strong language used by the chairman's utterance went beyond the form of a mere reprimand and on account of its ensuing emotional impact, the ability of the chairman to hear the opponent with an objective judicial mind could be perceived as being affected. Therefore, the Board of Appeal did agree that the objection of suspected partiality was justified and that it affected the remainder of the oral proceedings.

The Board, however, decided not to remit the case back to the department of first instance for a number of reasons, one of which being that, in the present case, the potential suspicion of bias concerning the chairman did not affect the whole process of decision making but only arose at the end of an “exceptionally long and intense oral proceedings.” The Board further argued that there was nothing in the minutes to suggest that the opponents were not allowed to extensively present their cases, and that on a high number of issues, the preliminary conclusions reached by the Opposition Division before the incident occurred were not tainted by a suspicion of partiality. As such, the Board decided to deal with the remaining issues, such as the question of patentability of the claims, itself.

This present decision appears to be consistent with previous case law, and should safeguard against situations in which a disgruntled representative deliberately provokes a reprimand so as to subsequently ask that the negative decision be nullified for alleged partiality.