4.1. Article 112a(2)(a) EPC – alleged breach of Article 24 EPC

For general information on Art. 24 EPC, see chapter III.J. "Suspected Partiality". The present chapter deals with decisions of the Enlarged Board under Art. 112a(2)(a) EPC.

In R 16/10 the Enlarged Board rejected the petitioner's argument that Art. 24(1) EPC, concerning the exclusion of members from a board, included not only the specific situation where one of the members had represented a party in the case in question but also the general situation where a member had previously acted as representative of that party in any matter. In R 20/09 the Enlarged Board confirmed that, in cases of suspected partiality of a board member, Art. 112a(2)(a) EPC requires that a decision has been taken on the suspected impartiality (Art. 24(4) EPC).

In R 3/16 the Enlarged Board confirmed that Art. 112a(2)(a) EPC foresees the situation where a member of the board has taken part in the decision despite being excluded pursuant to a decision under Art. 24(4) EPC or in breach of Art. 24(1) EPC. The petitioner had further contended that it was an established principle that a party had no obligation to appear before an unlawful court; that, on the contrary, it could be prejudicial to do so since the right to be heard could not be properly guaranteed before such a court, thus leading to the question as to whether appeal proceedings held by a board unlawfully composed may amount per se to a breach of the right to be heard. This question, however, remained open because the Enlarged Board did not come to the conclusion that the board had actually ignored the procedure of Art. 24(4) EPC.

In R 17/09 the Enlarged Board found that in English the term "man in the street" had no pejorative associations, but was commonly used to describe an average citizen.