Abstract on Rule 106 EPC for the decision T1899/23 of 20.01.2026

In T 1899/23 the appellant raised an objection under R. 106 EPC. It argued that a panel composition that was not in accordance with the business distribution scheme (BDS) had violated the right to have the case considered by the lawfully designated judges, the right to have fair proceedings and the right to be heard. It further submitted that these deficiencies were to be regarded as "severe defects" pursuant to Art. 112a EPC.

The board recalled that, according to the case law (see R 4/08, R 8/08), the reference in R. 106 EPC to the specific procedural defects as set out in Art. 112a(2)(a) to (d) EPC not only implied that the objection should be based on one of these grounds, but also that the party must explicitly indicate which of them was considered to apply.

The board held that while the party's interest in having the case considered and decided by the lawfully designated judges had been acknowledged also for proceedings before the boards of appeal (see e.g. G 1/21 of 16 July 2021, G 1/05, G 2/08, G 3/08, J 15/04), this did not imply that this principle was also covered by the procedural defects as exhaustively enumerated in Art. 112a(2) EPC. The defects set out in Art. 112a(2)(a), (b) and (d) EPC at least did not encompass a violation of the right to have the case decided by the lawfully designated judges in accordance with the BDS.

The board specified that the appellant's objection with respect to the composition of the panel could not be based on Art.112a(2)(a) EPC, as this provision explicitly concerned the allocation of members in breach of Art. 24(1) or (4) EPC. The same applied to Art. 112a(2)(b) EPC, as this provision referred to the appointment of a member to the Boards of Appeal as a whole (see R 21/22). Moreover, the appellant's objection could not be based on Art. 112a(2)(d) EPC, since this exclusively covered the defects set out in R. 104 EPC (see e.g. R 6/11) which were not related to the right to be heard by lawfully designated judges.

Hence, there would only be a basis for an objection under R. 106 EPC if an (allegedly) incorrect composition of the panel could be regarded as a fundamental violation of the right to be heard according to Art. 112a(2)(c) and 113(1) EPC. However, for the purposes of the present case, there was no need to decide whether a fundamental defect in the composition of the responsible panel could have indeed been regarded as a violation of the right to be heard under particular circumstances (e.g. if the defect were so severe that the composition was entirely arbitrary) and what consequences this might have had for the continuation of the proceedings. This was because the parties' interest to be heard by the lawfully designated judges (and, accordingly, the right to have fair proceedings) was not affected in the present case. According to the board, the composition of the panel in the case at hand was in accordance with the relevant provisions of the applicable BDS, the RPBA and the EPC.

The board concluded that the composition of the board could not be considered arbitrary, but rather was based on the provisions of the BDS of the Technical Boards of Appeal respectively in force at the relevant points in time. For this reason, the parties' rights to be heard by lawfully designated judges and to have fair proceedings were not impaired.

In the absence of any procedural defect with respect to the composition of the panel, the objection under R. 106 EPC was dismissed.