R 0016/22 - No petitions for review against interlocutory decisions

Key points

• This decision concerns a 'submarine' petition for review, in the sense that nothing about the petition was visible in the online file (only a remark in the "about this file" tab) until the written decision was issued in October 2025. The online file has been completed since then.
• The petition for review was filed on 14.06.2022. The Enlarged Board, in a three-member composition, took up the petition for review in 2024 (point XIV). Admittedly, in the meantime, a lot had happened in the case. Oral proceedings took place on 07.02.2025. The EBA decided to forward the case to the five-member panel (this decision is not visible in the online file). 
• The five-member panel included an external legal member (Austrian judge).
• The present decision in the translated headnote: "An interlocutory decision by which a Board of Appeal, in its composition as a substitute Board, has rejected as unfounded a motion to recuse the three members of the original Board composition on the grounds of bias (interlocutory decision on bias) is not a decision against which an independent or separate request for review within the meaning of Article 112a EPC may be lodged."
• The EBA thereby confirms R 5/23 (issued in July 2024, by a three-member panel of the EBA) and departs from R2/15.
• The EBA, in translation: "the lack of analogous applicability of Article 106(2) EPC does not mean that there can be no restrictions regarding the reviewability of interlocutory decisions under Article 112a EPC."
•  "The purpose and aim of the review procedure ("Sinn und Zweck des  Überprüfungsverfahrens"),  in particular its design as an extraordinary remedy, are aspects that do not support equating petitions for review with appeals with regard to the available grounds, nor do they support a more lenient practice in reviewing appeal decisions. Rather, they argue for a stricter assessment of the admissibility of review requests. "
• "The legal consequence of a successful request for review is, according to Article 112a(5) EPC, the annulment of the decision and the reopening of the proceedings before the Boards of Appeal.  ...  The term "reopening of the proceedings" (or "re-opening of the proceedings" and "réouverture de la procédure" in the English and French versions of the regulations) linguistically presupposes that the decision under review is a decision that concluded the appeal proceedings." 
• As a comment: any grievances of a party against the interlocutory decision likely can be raised in a petition for review of that party against the final decision, provided that the party is adversely affected by the (order of the) final decision of the Board. 
• The underlying case is T 2175/15. There were five partiality objections. The appeals were withdrawn. There was also a decision on the costs. An overview can be found in this earlier post.

EPO 

The link to the decision can be found after the jump.

https://www.epo.org/de/boards-of-appeal/decisions/r220016du1