R 0003/24 (Petition for review) vom 31.03.2026

Breach of secrecy of deliberation (Article 19(1) RPBA) a fundamental defect under Article 112a(2)(d) EPC or per se leading to violation of right to be heard (no)
Petition allowable (no) no violation of petitioner's right to be heard

1. A request to uphold an appeal on the basis of a specific piece of prior art is not a request in the meaning of Rule 104(b) EPC (point 3.1 of the Reasons).
2. Article 112a(2)(d) EPC is not a "catch-all clause" for procedural defects. It merely empowers the legislature to define defects in the Implementing Regulations in addition to the defects mentioned in Article 112a EPC. Rule 104 EPC exhaustively defines exactly two defects; a violation of any of the provisions of the RPBA is not among them. (R 12/23, point 3.1 affirmed.) (See point 3.2 of the Reasons).
This applies in particular to an asserted violation of Article 19(1), third sentence, RPBA according to which "[t]he deliberations shall be secret." A remedy for the breach of the secrecy of the deliberation does exist: board members may be liable to disciplinary action by the Administrative Council. (See points 4.1.2 and 4.3.1 of the Reasons).