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1. Disqualifying partiality presumes a preconceived attitude on
the part of a deciding person (in this case the first Examiner)
towards a party (in this case the Patentee) to the case. The
fact that the views held on the issues of the case by the
Examiner differ from those held by the party is in itself not
disqualifying. The remedy to be used in such a situation is the
appeal.
2. When considering an allegation of partiality (in this case
mainly based on the fact that the Examiner was a former employee
of the Opponent in the case), regard must be had to the
particular facts of the case (cf. G 5/91). The content of the
file must therefore be examined to find out whether there are
major deficiencies in the reasoning underlying the decision to
such an extent that there is reason to believe that they were
the result of a preconceived attitude.
3. When the content of the file does not go beyond a normal
discussion between the EPO and a party and there is nothing
manifestly unreasonable to be found in the reasoning,
disqualifying partiality cannot be concluded.
4. The length of time between the Examiner's last action for his
former employer and his first action as Examiner in a particular
case to which this employer is a party may be important, since
any residual bias which may be caused by this employment would
gradually fade away with time. Given the relatively long period
of 21 months in this respect, there is no good reason to suspect
that the Examiner at the time in question was unduly influenced
by his previous employment.
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