G 1/21b - The Business distribution scheme

 Key points

• “The appellant alleges that when recomposing the panel to deal with its first objection and again after the decision to replace the Chairman and a further member, Article 2(2) and 2(3) Business distribution scheme have not been applied correctly and the Enlarged Board is therefore not correctly composed. As a result the right of the appellant to have its case heard by lawfully designated judges and its right to be heard have been violated. ”
• “the provisions of [Article 2 of the Business distribution scheme of the Enlarged Board] do not indicate a competence for a panel as composed by the Chairman to change its own composition. Only the Chairman is given a role in changing a given composition of a panel. It would appear that an incorrect application of the provisions of the Business distribution scheme should thus be corrected by the Chairman of the Enlarged Board and not by the panel as composed by him. ”
• “For the reason of lack of competence the Enlarged Board as presently composed refrains from commenting on the alleged incorrect application of Article 2(2) and 2(3) of the Business distribution scheme of the Enlarged Board.”
• I prefer to refrain from commenting on the passage above.

https://www.epo.org/law-practice/case-law-appeals/recent/g210001eu2.html

34. With procedural requests 7 and 8 the appellant requests to change the composition of the Enlarged Board in this case. The appellant alleges that when recomposing the panel to deal with its first objection and again after the decision to replace the Chairman and a further member, Article 2(2) and 2(3) Business distribution scheme have not been applied correctly and the Enlarged Board is therefore not correctly composed. As a result the right of the appellant to have its case heard by lawfully designated judges and its right to be heard have been violated. This is a substantial procedural violation.

35. The Enlarged Board notes that this request is not made under Article 24 EPC, nor is it indicated under what other provision it is made. The question arises whether under the provisions of the EPC the present panel of the Enlarged Board has a competence to replace one or more of its members, other than by the mechanism of Article 24 EPC. The Enlarged Board is unable to see such a competence in the provisions of the EPC or the ancillary regulations. According to the RPEBA the composition of the panel to deal with a particular case under Article 112 EPC is determined by the Chairman of the Enlarged Board (see Article 2(2) RPEBA). Changes to the composition of the panel are regulated in Article 2 of the Business distribution scheme of the Enlarged Board. The provisions of this article do not indicate a competence for a panel as composed by the Chairman to change its own composition. Only the Chairman is given a role in changing a given composition of a panel.

36. It would appear that an incorrect application of the provisions of the Business distribution scheme should thus be corrected by the Chairman of the Enlarged Board and not by the panel as composed by him. For the reason of lack of competence the Enlarged Board as presently composed refrains from commenting on the alleged incorrect application of Article 2(2) and 2(3) of the Business distribution scheme of the Enlarged Board.