EP 2 133 289 B1 relates to a device for stocking and removing goods and for cleaning the store, and method for operating such a device.
The covering page of T 2078/17-2
The present decision is the second decision in matters of suspected partiality of a member of the OD. The first one dates from 07.02.2023.
Brief outline of the case
During the OP on 02.12. 2022, the opponent filed a handwritten request alleging suspected partiality of all members of the Board.
The substitute board invited the members of the original board to comment on the grounds for exclusion in accordance with Art 3 (2) RPBA.
In a communication from the substitute board, the parties were also invited to comment on the declaration of the original board members, within a period of one month in accordance with Art 3 (2) RPBA.
By interlocutory decision of 07.02.2023, the opponent’s request of 16.01.2023 alleging suspected partiality of the substitute board to be dismissed was rejected as inadmissible.
The opponent filed a petition for review under Art 112a against this interlocutory decision. By decision R 5/23, the petition for review was rejected as manifestly inadmissible.
By decision of 04.09. 2024, the amendeded composition of the substitute board was determined and communicated to the parties.
On 21.03.2025, OP were held before the substitute board.
The suspicion of partiality was dismissed again.
An in-person OP, in order to apparently discuss the substance, has now be scheduled for 12.06.2025.
The second decision of the substitute board
In accordance with the valid legal requirements and specifications, the request for recusal on grounds of concern of partiality against the members of the original board was held unfounded.
The justification of the request of partiality is based on a manifestly incorrect interpretation of the procedural rules and obligations applicable to the proceedings before the BAs and is therefore manifestly unsuitable from a legal point of view to give rise to a concern of partiality.
Comments
Anonymisation is useless
The present cover page of the decision ( as well as the first decision) is void of any possibility of determining the identity of the parties.
In point X. of the “Facts and submissions” of the second decision, it is however noted that the opponent has filed a petition for review which has been dismissed, cf. R 5/23.
In R 5/23, the parties were clearly identifiable.
The “empty” front page of the present decision is thus meaningless. To keep the confidentiality, the mention of R 5/23 should have been omitted.
Suspected partiality of a member of the BA or of the EBA
In such a situation, Art 24(3+4) and Art 3 RPBA apply.
It is vey rare that a member of a board is removed by decision of a substitute board. It do not remember that a whole board has been replaced by decision of the substitute board.
In G 1/21, one member of the EBA has been replaced by decision of a substitute EBA. Another member of the original EBA, apparently preferred to step down himself before his colleagues did forced him to do so.
Suspected partiality of a member of a first instance division
In first instance the situation is different and G 5/91, OJ EPO 1992, 617, applies.
The procedure to follow is to be found in the Guidelines E-XI.
Some recent decisions can be mentioned in this respect:
In T 1647/15, the chair of the OD was considered partial and a SPV was therefore committed. The board did however decide through without remittal.
In T 727/19 partiality was acknowledged, but a SPV was committed by not following the procedure set out in the Guidelines.
In T 1677/21, partiality was not acknowledged, and a SPV acknowledged. The board refused the request to order a change of the composition of the opposition division was rejected.
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