Article 24 EPC allows for the objection to members of a Board of Appeal or Enlarged Board of Appeal if suspected of partiality. A recent decision from the EPO Board of Appeal, T 0792/12, deals with procedural issues during oral proceedings and discusses partiality in relation to the Board's conduct.
In the decision, it is stated that the appellant raised the question of partiality during oral proceedings in front of the Board of Appeal. The appellant felt his arguments were not being considered due to the interruptions by the Board. The appellant even requested that the Board made no further interruptions during his pleadings. Under Article 113(1) EPC, the parties concerned have a right to be heard and, in particular according to J 4/82, not discussing arguments of the parties or not giving enough time for a reply will result in a substantial procedural violation. Despite this, it appears that the Board did not abide by the appellant's request for no interruptions, and in the decision the Board held that:
In accordance with Article 15(1) of the Rules of Procedure of the Boards of Appeal (RPBA), the Chairman of the Board presides over the oral proceedings and ensures their fair, orderly and efficient conduct. When the Chairman sees a need to interject in a party's submissions to ensure that the proceedings are efficiently conducted, in particular to avoid a party repeating arguments, this is done.
The decision refers to Article 15 of the RPBA. However, it does leave room for interpretation, particularly of what constitutes "fair". To this end, the Board substantiated that:
The fact, as here, that a Board is not convinced by the representative's arguments on a certain matter, and even interrupts the representative to clarify how the representative sees that a certain argument is at all relevant to the claim in question, or to the matter of novelty or inventive step which is being discussed, does not imply that a Board is not listening or is intent on sticking by its provisional opinion. In the present case a significant portion of the representative's submissions particularly with respect to the main request, were a simple repetition of the numerous written submissions prior to oral proceedings, and indeed often a repetition of what had been presented already orally but a few minutes earlier. It is here of relevance to note that, when interrupted on one last occasion so as to limit further repetition, the representative of the appellant himself argued that during his submissions he had in fact made two new points not mentioned in writing (a general reference to T56/87 and a reference to Article 69 EPC - see above, both duly noted and commented upon in the course of the debate by the Board). The objections of the appellant are, at least for these reasons, unfounded.
This is consistent with another recent decision by the Board of Appeal on T 1647/15 which our previous article discussed. In that decision, although there was a finding of a fundamental procedural deficiency due to an outburst by the Chairman, it was held that as the party were allowed to extensively present their case prior to the outburst, it did not affect the whole process of decision making.
Similarly, in the present decision, the Board held that as the parties had presented their arguments in "numerous" written proceedings and the facts were repeated during oral proceedings, further argumentation was not necessary. It is noted that G 3/08 surmised that an issue of partiality might exist if a judge let it be known that he would never change his mind on certain questions on which he has given his opinion before. However, in the present decision, the Board maintained that they were not averse to changing their preliminary opinion and ensured they came to decision on the new matters raised by the appellant.
This present decision appears to be consistent with previous case law and provides the Boards of Appeal with recourse to limit the excessive repetition of arguments by representatives without partiality being questioned.