1.1. General comments on changes in composition of the competent departments of first instance

In T 390/86 (OJ 1989, 30) the board held that a decision given orally at the oral proceedings must be written up on behalf of – and represent the views of – the members appointed to decide the proceedings. The written reasons for a decision delivered during oral proceedings can only be signed by members of the deciding body who took part in the oral proceedings. The same principle applies if between the orally delivered decision and the written decision proceedings in accordance with R. 58(4) EPC 1973 have taken place. If the written decision is signed by persons who did not constitute the opposition division during the oral proceedings, the decision is invalid. In T 1652/08 the board held that where the change in the composition of the opposition division occurs prior to the oral proceedings, this is not by itself a breach of the right to a fair hearing (see also T 2365/11, T 2344/16 and T 1090/18). Similarly, the board in T 160/09 read T 390/86 to mean that it did not prohibit the composition being changed. There was nothing to preclude changing the composition of an examining division, nor was the EPO required to follow a particular procedure to do this. In T 1207/09 the board went along with this reading of T 390/86, concluding that it could not be construed as prohibiting a change in the examining division's original composition prior to oral proceedings.

In T 2348/19 the board held that if a member of the department of first instance, who participated in the oral proceedings before that department, is unable to act at the time the reasoned decision is to be issued, for example due to death or a longer lasting illness, one of the other members may sign on behalf of the incapacitated member. However, in such a situation, a written explanation as to why one member is signing on behalf of another must be provided. In the absence of such an explanation, the contravention of R. 113(1) EPC constitutes a substantial procedural violation.