1.4.2 Use of objective criteria to determine correctness of composition

In T 281/03 of 30 March 2006 date: 2006-03-30 the board held that the correctness of the composition had to be decided on the basis of objective criteria, i.e. on the basis of the RPBA and the BDS. There was no subjective element which would justify an analogous application of Art. 24(4) EPC, nor did it in its substitute composition see any gap in the law which might require an analogous application of Art. 24(4) EPC. On the contrary, if the composition of a board had to be checked by a second composition, the operation of a board could be paralysed by a sequence of mere objections to its composition.

In T 355/13 the board found inadmissible the appellant's mere allegation that as a result of changes to its composition, the board had formed a special tribunal ("Spezialtribunal") to the appellant's disadvantage, and that the "real grounds" for the changes to the composition had not been communicated by the board. The board had explained in a communication to the parties that the changes to the board's composition were due to changes to the BDS, in particular it was pointed out that the former technically qualified member had been transferred to another board and the former legally qualified member was no longer a member of the boards of appeal. The appellant had nevertheless pursued its objection without producing any evidential basis supporting the allegation.

In R 12/22, the petitioner first argued at the oral proceedings before the Enlarged Board that the replacement at short notice of the legal member infringed a "right to be heard by the judge designated by law" ("Recht auf den gesetzlichen Richter"). The Enlarged Board held that the EPC and its supplementary provisions, in particular those of the RPBA, do not regulate a "right to be heard by the judge designated by law". Art. 2 RPBA regulates exceptions to the BDS, namely the replacement of members if they are unable to participate. However, in the oral proceedings before the board of appeal, the petitioner had claimed neither a right to be heard by the judge designated by law nor argued the absence of any exception under Art. 2 RPBA. The Enlarged Board therefore decided to reject as clearly unfounded this newly alleged breach of the right to be heard resulting from infringement of a right to be heard by the judge designated by law.