3.11.1 Composition of the Enlarged Board

Petition for review proceedings consist of two stages. In the first stage, a panel of the Enlarged Board composed of three members (two legally qualified, one technically qualified) examines all petitions for review and rejects those which are clearly inadmissible or clearly unallowable (unanimity is required; R. 109(2)(a) EPC). Those not rejected are considered by a panel composed of five members (four legally qualified, one technically qualified; R. 109(2)(b) EPC). In these cases, the three-member panel under R. 109(2)(a) EPC is supplemented by two further legally qualified members (Art. 2(3) RPEBA). The Chair of the board against whose decision the petition was filed may not take part in the proceedings (Art. 2(6) RPEBA).

In R 25/22 the Enlarged Board held that the correct criterion for determining whether the petition was "clearly" unallowable within the meaning of R. 109(2)(a) EPC was not just the depth of the analysis required to understand the case from a legal or technical point of view. What also mattered was the degree of conviction of the individual members of the Enlarged Board as to whether the alleged procedural defect was indeed a fundamental one within the meaning of Art. 112a(2)(a) to (d) EPC, once the relevant facts of the case had been identified, possibly only after an exhaustive and detailed examination of all the legally and technically relevant facts.