I. A suspicion of partiality must inevitably arise if a member
of an Opposition Division, or any other first instance body,
first solicits and then accepts employment with a firm in which
a partner or other employee is conducting a case pending before
that member. The fact that this only occurred after the oral
proceedings were held, and the decision if not the reasons
known, makes no difference - to be above all suspicion of
partiality, every member must avoid any such situation at any
time during the proceedings. No-one can be seen as independent
of both parties while in the employ of one of them. (See
Reasons, paragraph 6)
2. That adaptation of a description is connected to the claims
as maintained appears clear from the very term "adaptation" and
it is inconceivable that the parties could or would expect
anyone other than the same members of the Opposition Division
who conducted the oral proceedings and made a decision on the
claims to deal with the necessarily inter-related and dependent
question of adapting the description. If for any reason (even
quite acceptable and understandable reasons such as illness or
retirement) the same three members are not available to deal
with the description, then it must follow that the parties are
to be offered new oral proceedings and that, without such an
offer, both the use of a different composition to decide the
description and the issue of two separate decisions signed by
differently composed Opposition Divisions amount to fundamental
deficiencies. (See Reasons, paragraph 13)
3. If delay were the only deficiency, the extreme length of that
delay (three years and seven months between oral proceedings and
issue of a written decision) and the consequent need to avoid
further delay is a special reason why the case should not be
remitted to the first instance under Article 10 RPBA. (See
Reasons, paragraph 18)
4. If procedural deficiencies in first instance proceedings were
so grave that the decision under appeal must be held invalid,
that decision is thereby quashed and regarded as a nullity. In
that event the case must be remitted to the first instance under
Article 10 RPBA to ensure a procedurally proper first instance
decision. (See Reasons, paragraphs 19 to 21)
