7.4.3 Violations of Article 19(2) EPC (composition of the opposition division)

The board in T 1349/10 pointed out that violations of Art. 19(2) EPC concerning the composition of the opposition division are considered to be substantial procedural violations which have led to a remittal of the case under Art. 111(1) EPC and to the reimbursement of the appeal fee in several cases (see T 251/88, T 939/91, T 382/92, T 476/95, T 838/02). In two of these cases (T 251/88 and T 838/02), the boards had asked the appellant or all parties whether they invoked the procedural violation before they decided on the remittal. In both cases, the patent had been revoked by the opposition division. However, in the judgment of the board in T 1349/10, violations of Art. 19(2) EPC 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.

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