3.6.5 Objection could not have been raised

Under R. 106 EPC an objection is not a requirement for the petition to be admissible where such objection could not be raised during the appeal proceedings. Therefore, if the alleged procedural defect becomes apparent to the parties only through the written reasons for the decision (in R 3/10: through the announcement of the decision), the admissibility of the petition is not conditional upon a corresponding objection having been raised during the oral proceedings (R 4/08; see, by way of example, also R 1/08, R 2/08 (written procedure), R 9/08, R 3/09, R 4/09, R 7/09, R 11/09, R 19/10, R 8/11, R 21/11, R 14/13). If a petition addresses mostly the reasoning of a decision, the benefit of the doubt is given to the petitioner as to its possibility to raise an objection before the end of appeal proceedings (R 1/11, see also R 18/14).

In R 16/09 the petitioner requested the correction of the minutes of oral proceedings in order to establish what, in its view, had been the order of the procedural steps followed by the board, to prove that it could not raise any objection in respect of the procedural defect during oral proceedings. The Enlarged Board held that the lack of possibility for the petitioner to raise an objection could not be excluded, even if the request to correct the minutes was rejected.

In the proceedings underlying R 10/08, the petitioner wanted to submit a new auxiliary request, allegedly during the announcement of the decision at the oral proceedings, but the board had declared itself formally bound by the decision as announced. The petitioner could thus no longer raise an objection "during the appeal proceedings". However, in R 12/14 the Enlarged Board held that, if the pronouncing of the decision immediately follows the closing of the debate, requiring the appellant to interrupt the chairman would overstretch the obligations arising from R. 106 EPC.

In R 5/17 the petitioner (opponent) had misinterpreted the acts and words of the board in the decision under review and without further questioning based its strategy on this interpretation. The Enlarged Board did not accept the argument of the petitioner that, although objectively an objection could have been raised, it could nevertheless not have been raised because the petitioner subjectively had no reason to raise an objection. Only the petitioner was responsible for this misunderstanding, and thus had to bear the consequences thereof.