a) Issuing of decision 

(i) Issuing of decision before expiry of time-limit to comment

In T 804/94 the board ruled that there had been a substantial procedural violation as the opposition division had issued a decision rejecting the opposition before expiry of the four-month period it had set for responding to its communication (see also T 663/99; see also chapter III.B.2.5.2).

(ii) Excessive length of proceedings

In T 900/02 the board found that the extreme length of the delay ‒ three years and seven months ‒ between oral proceedings and the issue of a written decision amounted to a substantial procedural violation.

In T 358/10 the board found that sending the minutes 19 months after the oral proceedings had taken place and notifying the decision 22 months after its pronouncement at the end of those proceedings were inherently unacceptable procedural violations which, by themselves, sufficed to justify refunding the appeal fee (see also T 243/87, T 563/11). In T 2340/13 the length of time between the oral proceedings and issuing of the minutes and written decision of the opposition division was 13 months and 14.5 months respectively. The board noted, with reference to T 358/10, that even if this delay by itself were not considered to be a substantial procedural violation, it plausibly contributed to the other procedural violations (see in this chapter V.A.11.6.9).

In T 823/11 the board considered the duration of the proceedings before the department of first instance of more than twelve years after entry into the European phase as excessive. According to the board, in T 315/03 even a shorter delay of ten years in a much more complex opposition case had amounted to a substantial procedural violation. The board also referred to the judgment of the European Court of Human Rights in Kristiansen and Tyvik AS v. Norway (application No. 25498/08), in which the examination and (administrative) appeal proceedings of a patent application had taken a total of eighteen years. Taking into account the duration of patent protection of twenty years, the Court had found "the length of the administrative proceedings before the patent authorities" to be excessive because it "in effect rendered meaningless any exercise by them [the applicants] of their right of access to a court". See also T 1243/17.

In T 1824/15 the board noted that the reasons for decision T 823/11 did not explain why the delays in the examination procedure could not be justified by the particular circumstances of the case. Moreover, T 823/11 did not explain how its reasoning was in line with that of the cited ECtHR decision, in particular why circumstances leading to a finding of a violation under Art. 6(1) ECHR would necessarily lead to a finding of a substantial procedural violation under R. 103(1)(a) EPC. In the case in hand the examining division had been entitled to raise the new objection so late in the first-instance proceedings. Members of an examining division were free to change their minds at any point in the procedure, including during oral proceedings, as long as the requirements of Art. 113(1) EPC were fulfilled. The board held that the over eleven year delay in raising of the objection based on D3 had led to neither a fundamental deficiency under Art. 11 RPBA 2007 nor a substantial procedural violation. With regard to the time taken by the examining division to issue the written decision and the minutes, the board found that the delay of seven months was not a procedural violation of any sort, let alone a substantial one, and also not a fundamental deficiency under Art. 11 RPBA 2007. The request for reimbursement of the appeal fee was therefore rejected.

In T 1131/12 the board stated that, although a delay of five years between a last communication and the written decision would be wholly unacceptable, there was no causal link between this excessive delay and the outcome of the examining division's decision. Moreover, the appellant had only filed and substantiated the request for reimbursement shortly before the oral proceedings. For these reasons, the board refused the reimbursement request under Art. 12(1)(a) RPBA 2007 and Art. 12(2) RPBA 2007.

In T 2707/16 the contested refusal decision was taken more than fourteen years after the filing date. The board found that the excessive delays, in particular the lapse of more than seven years before the second substantive communication was sent out, constituted a procedural violation. The board argued that the violation was also substantial because the severe delays had the consequence that the first-instance decision was taken much later than it would have been without the procedural deficiencies. Thus, they had an impact on an essential element of the decision, namely its date ("justice delayed is justice denied"). However, the board was of the opinion that a reimbursement of the appeal fee in the circumstances should be regarded as equitable only where the applicant has made clear by some action that he did not tacitly agree with the stagnation of the proceedings. The board found the appellant failed to provide any such signal for a very long period of time and therefore refused the request for reimbursement.

In T 2377/17 the board found the delay of 14 years before the examining division issued its first substantive communication to be a substantial procedural violation. The board noted that the appellant had remained inactive for over 12 years before it requested accelerated examination, but the Examining Division then still did not succeed in issuing a communication within the period of six months to which it had committed; instead, it required close to two more years. After the appellant filed a timely reply, it again took more than 18 months - and a second request for accelerated examination, again leading the Examining Division to commit itself to a date it ultimately did not keep - before the Examining Division issued the summons to oral proceedings. Contrasting the applicant's attempts to move the case forward with those of the applicant in T 2707/16, in which the same board found the reimbursement of the appeal fee not to be equitable because the applicant there had taken insufficient action to try to move the proceedings forward, and noting the periods of unjustified delay that occurred despite the appellant's attempts to move the case forward, the board considered reimbursement of the appeal fee to be equitable in the case in hand.

In T 2699/17 the board agreed with the appellant (applicant) that a total processing time of more than 12 years (from filing of the application to the decision to refuse the application) was by far above the average, but found that although undesirably long, the duration of the case did not amount to a substantial procedural violation. Unlike in T 2707/16, in which there was a long period of stagnation, in the case in hand the examining division regularly returned to the case and addressed various issues of substance, which the appellant promptly addressed. During prosecution of the case, the decision in G 1/07 (OJ 2011, 134) was also issued, which was highly pertinent to the application. The board was also unable to see why the appellant waited until the appeal stage to voice its concerns instead of making use of the PACE programme, which gives applicants a convenient tool to speed up the pace at which the proceedings are progressing.

(iii) Lack of competence

A decision taken by a department that is not competent amounts to a substantial procedural violation justifying the reimbursement of the appeal fee (see T 2411/10 where the Receiving Section, and not the examining division, was competent to decide). A substantial procedural violation is deemed to have occurred if the decision has been taken by a formalities officer who was not competent to decide (J 10/82, OJ 1983, 94; T 114/82, OJ 1983, 323; T 790/93; T 749/02).

(iv) Decision not approved by all members

In T 225/96 the board ruled that to issue the parties with a draft decision not approved by all opposition division members present at the oral proceedings was a substantial procedural violation.