4.3.2 "Fundamental" violation of Article 113 EPC – causal link and adverse effect

In R 8/16 the Enlarged Board held that an alleged violation could not be fundamental, in the sense of intolerable, if it did not cause an adverse effect. In the case in hand the Enlarged Board stated that the omission of the reasons for the admission of the main request may not be a practice which it expressly endorsed but given that the petitioner did not explain and the Enlarged Board itself could not see what adverse effect might have been caused by not hearing the petitioner on this issue, and given that the admission of the petitioner's main request was clearly a positive result for the petitioner, it was not seen as a fundamental violation of Art. 113(1) EPC. The Enlarged Board further held that, as a matter of principle, the board was free to examine the (pending) claim requests in any order, and therefore it was also free to conduct the discussion on them in any order, without having to give reasons. It stated that the principle of party disposition expressed in Art. 113(2) EPC did not extend so as to permit a party to dictate how and in which order a deciding body of the EPO may examine the subject-matter before it. The only obligation on the EPO was not to overlook any still pending request in the final decision. The order of examination or discussion is a question of procedural economy, for which mainly the deciding body is responsible. A board has no particular duty to give reasons why it chose to proceed as it did. Giving reasons on withdrawn requests might well have given rise to an objection under Art. 113(2) EPC.