T 2175/15 - The opponent submits five partiality objections

Key points

• Three interlocutory decisions on partiality were issued in September 2023 in this opposition appeal case, where the opponent has, up to now, filed five partiality objections. 
• The decisions are anonymised, but the application number is easy to find and the file is public (some letters are redacted). 
• The appeal was filed in November 2015, the statement of grounds was in January 2016, and the reply was filed in May 2016, followed by the silence of the Board until April 2019: summons for oral proceedings to be held on 20 March 2020 (bad luck). 
• Oral proceedings were postponed and finally held by vico in January 2021. The Board admits auxiliary requests and decides that the proceedings continue in writing.
• The opponent, represented by a professional representative of a German firm, files a first partiality objection in April 2021, followed by a second one when the Board, in original composition, outlines the framework for admissibility. The second objection is rejected by the Board in alternate composition.  The Board, in the original composition, issues a new summons with a preliminary opinion on the remaining issues of the admissibility first partiality objection and the apportionment of costs (the patentee had withdrawn the appeal). The opponent files a third partiality objection. Again, a Board in alternate is then formed, and the opponent files a fourth partiality objection against one of the members of the Board in alternate composition. A replacement Board member was appointed, and the opponent filed a fifth partiality objection. A further replacement member is appointed. Oral proceedings are held in June 2023 before the Board in alternate composition.
• The second objection was dismissed in  April 2022, and now the 3rd, 4th and 5th. 
• The decision on third objection was taken by Board members N, D, H; the decision on the fourth objection by K, D and H, the decision on the fifth objection by G, D and H, all on the same day. Must have been an interesting set of oral proceedings on 23 June 2023. However, the minutes are not visible in the online file.
• The register shows that a petition for review R 16/22 is pending against the decision of April 2022, though the documents about that petition are not visible in the online file. 
• The appeals were withdrawn on 4 and 7 July 2022 but the opponent maintained its request for cost apportionment. 
• There was some litigation about the national German patent. I understand that there was some German  case law that a preliminary injunction could not be awarded by German courts until the validity of the patent was proven in opposition (or nullity) proceedings (see CJEU case C-44/21 of April 2022). So, possibly, the opponent had no clear interest in a swift end to the opposition proceedings at the relevant times.

EPO 

The link to the decision is provided after the jump.

https://www.epo.org/de/boards-of-appeal/decisions/t152175du4