3.7.2 Requirements of a valid objection
Raising an objection under R. 106 EPC is a procedural act and a precondition for access to the extraordinary legal remedy under Art. 112a EPC (R 4/08, R 7/08, R 3/11, R 7/11, R 16/12). The objection must be expressed by the party in such a form that the board is able to recognise immediately and without doubt that an objection under R. 106 EPC is intended (R 6/22, R 9/22, R 2/23). It also must be specific, indicating clearly and unambiguously on which procedural defect the petitioner intends to rely (see R 4/08, R 7/08, R 8/08, R 1/10, R 17/10, R 7/11, R 5/12, R 6/12, R 16/12: established jurisprudence, R 3/14, R 8/16, R 9/22, R 2/23).
An objection under R. 106 EPC is additional to and distinct from other statements, such as arguing or even protesting against the conduct of the proceedings or against an individual procedural finding (R 2/08, R 7/08, R 9/09, R 1/10, R 14/11, R 21/11, R 16/12, R 6/22, R 9/22). An objection under R. 106 EPC must be something other than an alleged reference being made to a potential violation of Art. 113 EPC (R 2/23). An objection must be expressly described as such (R 8/08, R 21/11, R 7/18). However, even if an objection does not contain an explicit reference to R. 106 EPC, it can qualify as an objection under R. 106 EPC (R 21/09; see also R 12/14, R 17/14).
In R 18/12, the Enlarged Board stated that only an objection which, in substance, raised a procedural defect which could be the subject of a petition for review under Art. 112a(2)(a) to (d) EPC could be regarded as an objection within the meaning of R. 106 EPC. In the case in hand, the Enlarged Board held that objecting, in substance, to the board's conclusion on clarity did not qualify as such an objection, even if the petitioner explicitly referred to Art. 113 EPC. Referring to R 18/12 the Enlarged Board recalled in R 6/22 that in determining whether the petitioner has complied with R. 106 EPC, what matters is not the formal wording of the objection but its substance as it could be objectively understood by the board. In the case in hand, during the discussion before the board on the admittance of the auxiliary request, the proprietor (petitioner) had made a statement that failure to admit the request would be a violation of its right to be heard. The Enlarged Board found that, even if the board might have subjectively perceived that the proprietor's argument was intended as an objection under R. 106 EPC, the board apparently had not considered the objection to have been effectively raised.
In R 8/18 the Enlarged Board noted that neither the petition, nor the request for correction of the minutes, nor the declarations of the representatives, stated anywhere that Art. 113 EPC or a violation of the right to be heard was mentioned by the petitioner in connection with the refused interruption, in which case the Enlarged Board might have recognised the objection as a reference to Art. 112a(2)(c) EPC. The Enlarged Board therefore concluded that the petitioner's own initial submissions did not suggest, let alone prove that a recognisable objection within the meaning of R. 106 EPC had been made.