4.2. Article 112a(2)(b) EPC – person not appointed as a board member

The Enlarged Board has not yet found allowable or admissible any petition for review alleging that a board of appeal included a person not appointed as a board member.

In R 21/22 the Enlarged Board considered that Art. 11(3) and 112a(2)(b) EPC both referred to the same appointment, that is to the Boards of Appeal as a whole, and not the attachment of a member to a particular board or boards. It took the view that for the ground of petition under Art. 112a(2)(b) EPC to be applicable, a member of a particular board must be someone who has not been appointed to the Boards of Appeal under Art. 11(3) EPC. Thus, the petitioner's arguments relying on the use of the singular "board of appeal" in the German language version of Art. 112a(2)(b) EPC ("nicht zum Beschwerdekammermitglied ernannt") failed to persuade the Enlarged Board.

According to Art. 19(1), second sentence, RPBA, only members of the board shall participate in the deliberations; the Chair may, however, authorise other officers to attend. In T 857/06 the board held that, under this provision (then Art. 19(1) RPBA 2003), a board's assistant may attend and take part in the deliberations.