11.6.1 Violation must be of a procedural nature

In T 12/03 the board stated that a substantial procedural violation is an objective deficiency in the procedure in the sense that the rules of procedure have not been applied in the manner prescribed by the Convention. According to J 6/79 (OJ 1980, 225), the giving of incorrect information by the EPO about the rules of procedure, which, if followed by the applicant, could lead to the same consequences as the incorrect application of those rules, could also be considered as lying within the scope of a "procedural violation". In T 690/06 the board held that an error of judgment on substantive issues by the examining division did not constitute a "procedural" violation (see also T 698/11, T 658/12). See also in this chapter V.A.11.6.10.

In T 990/91 the board held that the lack of opportunity to reply to a new argument from the examining division in its decision to refuse the application that was supererogatory and incidental could not be considered to be a procedural violation (see also T 1085/06).

In T 683/14 the board held that the examining division had committed a substantive error rather than a procedural one. The procedural consequences were caused exclusively by the implementation of the division's erroneous substantive position and did not constitute an independent procedural violation for the purposes of R. 103(1)(a) EPC. The examining division had wrongly refused to take into account a confidentiality agreement, having considered that the debate had been closed and a decision had been taken during oral proceedings. The board explained that the examining division had erred in that the oral proceedings had not been terminated by a formal decision and that even if the debate had been formally closed, it could have been re-opened. The board cited T 595/90 and held that, on re-opening the debate, considerations analogous to those that apply to the Boards of Appeal apply to the department of first instance: "[o]bservations submitted [after closing the debate] could only be taken into account if the Board reopened the debate (Art. 113 EPC) which depends on its discretion."

In T 68/16 the board noted that the opposition division had not used the problem-solution approach. The board stated that this fact in itself did not constitute a substantial procedural violation. The problem-solution approach was not enshrined in the EPC and its use was not mandatory. The board agreed that, as a rule, a division that does not use the problem-solution approach should indicate its reasons for doing so, if only to dispel the impression that it acts arbitrarily. However, the Guidelines for Examination only stated that any "deviation from this approach should be exceptional" (see Guidelines G‑VII, 5 – November 2017 version; this passage was subsequently deleted in the November 2018 version) and did not require a justification.