If the Examining Division considers that the nature of the decision so requires, it is enlarged by the addition of a legally qualified examiner.
The participation of a legally qualified examiner or at least internal consultation of Directorate Patent Law, the department responsible for providing legally qualified members for Examining and Opposition Divisions, will be required if a difficult legal question arises which has not yet been solved by the Guidelines or by jurisprudence.
If the Examining Division has been enlarged by the addition of a legally qualified examiner, it consists of four members. In this case, in the event of parity of votes, the vote of the chairman will be decisive. As a rule, this enlargement of the Examining Division will be required in cases where evidence has to be taken according to Rule 117 (including the giving of evidence by witnesses - see E‑III). The addition of a legally qualified examiner is to be considered also in the case of oral proceedings. Such enlargement will also be necessary in cases involving technical opinions (Art. 25 - see E‑XI, 3.1).
Depending on the nature of the problem, as an alternative to the enlargement of the Examining Division, internal consultation of a legally qualified examiner in Directorate Patent Law may take place. For instance, doubts may arise whether an application concerns an invention within the meaning of Art. 52(2) or whether the claimed invention is excluded from patentability by virtue of Art. 53. Consultation of a legally qualified examiner may also be appropriate in cases where legal considerations are predominant in respect to a decision, as in proceedings following a request for re-establishment of rights according to Art. 122. The formalities officer may also consult Directorate Patent Law in cases within the scope of the duties transferred to him according to Rule 11(3) (see the Decision of the President of the EPO dated 12 December 2013, OJ EPO 2014, A6).