2.2.3 Remittal after breach of Article 19(2) EPC

In T 838/02, the chairman of the opposition division was excluded as he had participated in the grant proceedings. The board held that if the composition of the opposition division was contrary to Art. 19(2) EPC 1973, the parties should be given the opportunity to comment, before the board decided on the remittal of the case. In T 1349/10, with similar facts, the board distinguished the situation from that in T 838/02, where the patent had been revoked by the opposition division and held that violations of Art. 19(2) EPC 1973 should lead to a remittal regardless of the parties' position at least in situations where third parties were affected by the outcome of the defective first instance proceedings, as in the case before it, where the patent was maintained in the opposition proceedings.

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