2.2.1 Changes in division's composition after oral proceedings

In T 960/94 the composition of the opposition division had changed between the decision announced orally and the written decision. The board decided that issuing the written decision on behalf of an opposition division whose first member was not present at the oral proceedings amounted to a substantial procedural violation of both Art. 113(1) and 116 EPC 1973, as it had been issued on behalf of a first member before whom the parties had been given no opportunity to present their comments at oral proceedings.

In T 862/98 the decision of the department of first instance was signed by an opposition division different from that before which the oral proceedings had taken place. The board decided that changes in the composition of an opposition division after oral proceedings should generally be avoided, even if no final substantive decision had been given orally. Where changes were unavoidable, new oral proceedings must in general be offered to the parties (see the analogous rule in Art. 7(1) RPBA 2003 (Art. 8(1) RPBA)). Such offers might be forgone in exceptional cases.

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