Abstract on Article 01 RPBA for the decision T1899/23 of 20.01.2026

In T 1899/23 the board, composed of three former members of Board 3.3.06, had already issued the communication under Art. 15 (1) RPBA and the summons to oral proceedings before the new business distribution scheme (BDS) of the Technical Boards of Appeal of 27 June 2025 entered into force on 1 September 2025. According to that scheme, the IPC class of the present case (C11D) was allocated to Board 3.3.02 as of 1 December 2025. In view of the retirement of the Chair of Board 3.3.06, all other members were assigned to other boards with effect from 1 December 2025. The case was transferred to Board 3.3.02 with effect from 1 December 2025. The composition of the board in the present case remained unchanged.

The board rejected the appellant's request that the case be continued with a panel composed of Board 3.3.02 and its Chair or Vice Chair. It noted that the competence of the panel of a technical board of appeal to assess whether its composition was correct pursuant to the RPBA and the relevant BDS had been acknowledged in T 281/03. However, in G 1/21 of 28 May 2021 and G 1/21 of 16 July 2021, the Enlarged Board held that it was not competent to change its composition or to declare itself to lack competence to deal with the case because of an allegedly incorrect application of the BDS. The board considered the conclusions of the Enlarged Board to be applicable when the party requests to change the composition of the panel of a technical board of appeal. It stressed that the appellant's final request was not to the effect that the board declare itself to lack competence to deal with the case, but rather that the case be continued with members of Board 3.3.02. The panel held that it had no competence to decide on that request. Since the Chairman of Board 3.3.02 had also confirmed that the composition of the board for the present case remained unchanged, there was no basis for continuing the case with members of Board 3.3.02 and its Chair or Vice Chair. The board noted that this finding was not challenged by the appellant's reference to Art. 8 RPBA, which merely addresses the consequences of a change in the board's composition after oral proceedings, but does not deal with the replacement as such.

The board found the composition of the panel to be in accordance with the relevant provisions of the applicable BDS, the RPBA and the EPC. The amendment in the BDS of 27 June 2025 did not presuppose a new composition of the panel. The board explained that Art. 8 BDS serves to ensure that the board and the composition of the panel, determined objectively on the basis of the BDS before the decision-making process started, remain unaffected by amendments made therein. This prevents interference in the decision-making process due to changes in the responsibility for a specific case triggered by amendments to the BDS. It also ensures that the designated judges can only be replaced pursuant to the specific provisions set out in the BDS, the RPBA or Art. 24(4) EPC. The board underlined that this enhances judicial efficiency constituting an essential element of the right to have fair proceedings (J 15/04).

The board observed that the peculiarity of the present case was that Board 3.3.06 remained in the BDS as an empty shell and became de facto ineffective. As no provision in the BDS explicitly covered this specific constellation, the board applied Art. 8 BDS by analogy, taking into account the following aspects. The BDS is an important element of an independent, reliable and efficient judicial system (R 15/11). Any change in a board's composition without good reason would be contrary to the evident purpose of the BDS and thus detrimental to the public's confidence in the judicial character of appeal proceedings (R 15/11). According to the board, to ensure that this objective is safeguarded for changes during the working year, Art. 8 BDS provides that the responsibility of the board and/or the panel shall not be affected if the BDS is changed and if a communication has already been sent or oral proceedings have been appointed. Replacing the members of a panel that was originally composed on the basis of objective criteria set out in the BDS would run counter to the principle that responsibilities shall be determined before the assessment of a specific case begins.

Furthermore, the board did not see any need for a referral under Art. 112(1)(a) EPC, because the legal loophole in the BDS could be closed by the analogous application of Art. 8 BDS, in line with established legal methodology. Nor did it consider a referral necessary to ensure the uniform application of the law.