T 1899/23 - When the Board ceases to exist

Key points

• "On 1 September 2025, a new business distribution scheme (BDS) was adopted, according to which the IPC class of the patent underlying the decision under appeal (C11D) was to be allocated to Board 3.3.02 as of 1 December 2025 and the allocation of the technical and legal members of Board 3.3.06 terminated after 30 November 2025. "
• "On 4 November 2025, the case was transferred to Board 3.3.02 with effect from 1 December 2025 and the parties were informed accordingly. The composition of the Board in the present case remained unchanged." However, the three members of the Panel were not assigned to Board 3.3.02, but to different Boards.
• "In a submission dated 13 January 2026, the appellant raised an objection under Rule 106 EPC and requested "to cancel the oral proceedings and to hold oral proceedings with the Board 3.3.02 in a composition of the Board 3.3.02 in a composition meeting the requirements of the business distribution scheme dated September 1, 2025". It argued that the composition of the panel with members of previous Board 3.3.06 contravened the BDS of 1 September 2025 [27 June 2025] as none of the members belonged to Board 3.3.02, i.e. the Board the case was allocated to with effect from 1 December 2025. "
• "the appellant's final request ... implies that the panel would have to determine that members of Board 3.3.02 would have to continue the assessment of this case. The panel has no competence to decide accordingly (see Article 1(3) RPBA and Article 3, 4 BDS). [...] since the Chairman of Board 3.3.02 also did not meet the appellant's request to change the composition of the panel in this case but rather confirmed that its composition remained unchanged, there is no basis for continuing the case with members of Board 3.3.02 and its Chair or Vice Chair." (referring to G 1/21).
• " with respect to the objection under Rule 106 EPC, the Board considers, in any event, that the composition of the panel for this case was in accordance with the applicable provisions of the relevant business distribution schemes for the Technical Boards of Appeal."
• "The defects set out in Article 112a(2)(a),(b) and (d) EPC at least do not encompass a violation of the right to have the case decided by the lawfully designated judges in accordance with the business distribution scheme". However, a violation of the right to be heard is not excluded.
• " for the purposes of the present case, there is no need to decide whether a fundamental defect in the composition of the responsible panel could indeed be regarded as a violation of the right to be heard under particular circumstances (e.g. if the defect were so severe that the composition was entirely arbitrary) and what consequences this might have for the continuation of the proceedings. This is because the parties' interest to be heard by the lawfully designated judges (and, accordingly, the right to have fair proceedings) is not affected in the present case. Under these circumstances, the Board finds it appropriate to comment on the composition of the panel in this particular case."
• "The wording of Article 8 BDS of 27 June 2025 is as follows: "Cases in which before 1 January 2025 [sic] a communication has been sent or oral proceedings have been appointed shall not be affected by this business distribution scheme, nor shall those cases individually allocated in transitional provisions of previous business distribution schemes. This provision applies mutatis mutandis if the business distribution scheme is amended during the working year." (link)
• "Since both the Board's communication under Rule 15(1) RPBA and the summons to oral proceedings had already been issued before the new business distribution scheme of the Technical Boards of Appeal of 27 June 2025 entered into force, the composition of the panel as set out in the communication of 21 May 2025 had to be maintained pursuant to Article 8 BDS."
• How the Board goes from 1 January 2025 to 27 June 2025 as the relevant date, is not explained, though most likely the cut-off date was simply not updated in the June 2025 version of the BDS. 
• "The BDS does not define the measures to be taken if a Board loses its Chair and all its members and, for practical purposes, ceases to exist."
• "The Board considers that Article 8 BDS is to be applied analogously if the case is transferred to another Board because the previous Board effectively ceases to exist."
• "Hence, although the case was transferred to Board 3.3.02, the present panel, consisting of members not allocated to this Board, did not have to be replaced in the given constellation. Rather, the composition of the panel as set out previously could remain unchanged pursuant to an analogous application of Article 8 BDS, which was also confirmed by the Chair of Board 3.3.02 with communication of 15 January 2026."
• The Board finds that claim 1 involves added subject-matter and dismisses the appeal. 

EPO 

The link to the decision is provided after the jump.

https://www.epo.org/en/boards-of-appeal/decisions/t231899eu1