Résumé de Article 112a(2)(c) EPC pour la décision R0012/23 du 08.08.2025

In R 12/23 the Enlarged Board of Appeal (hereinafter referred to as "EBA") summarised the petitioner’s assertions concerning procedural deficiencies regarding the ground for petition mentioned in Art. 112a(2)(c) in conjunction with Art. 113(1) EPC as follows: (i) the petitioner had had no opportunity during the oral proceedings to argue on the standard applied by the board in the written decision; (ii) the board had neglected the "gold standard" as one of two alternative approaches - in the decision, the board had applied only the "essentiality test" and not also the "gold standard" thereby contravening R 2/14 and - the board had provided no opportunity to discuss the "gold standard", during the oral proceedings; and (iii) the decision was not sufficiently reasoned on the "gold standard" or on the "essentiality test". The EBA found that the first alleged procedural deficiency was obviously unfounded, because it was in direct contradiction with the petitioner’s own conclusion which made it clear that the discussion in the oral proceedings had been "identically" mirrored in the written decision. On the second alleged procedural deficiency, the EBA stated that it could not find that the board had obviously not applied the "gold standard" due to the fact that it may also have examined the criteria of the "essentiality test". The EBA had to rely on the board’s declaration that it had applied the "gold standard", given that the EBA was prevented from scrutiny of the application of the law, i.e. whether the board had applied the "gold standard" in an incorrect manner. The EBA considered whether the R 2/14 rationale would at all apply to the case in hand and concluded that in R 2/14 it had been held that the board would have needed to address (three) alternative factual approaches to assessing sufficiency of disclosure. In the case in hand, however, the (two) approaches in question were legal approaches. Having opted for one of them and thus having determined the law, the board was under no obligation to apply the facts of the case to an alternative legal approach. In this regard, the EBA noted that a board deciding on a case must establish the facts and apply the law to them. If a party puts forward several alternative sets of facts in order to support a specific finding of law, then the board must assess whether any of these sets support that finding and may only reject the suggested finding once it has concluded that none of the sets of facts justifies it. The EBA emphasised that there is no need to discuss alternative legal approaches, as distinguished from factual approaches, in the decision, because the board determines the law, in particular the correct legal approach. However, even though this had not been necessary, the board in the case in hand had still applied both approaches, i.e. the "gold standard" and the "essentiality test". The finding that the requirement to discuss alternative approaches set out in R 2/14 did not apply in this case presupposed that the board had given the party an opportunity to provide its comments on the correct legal approach. The petitioner itself stated that this had been the case. If, during the oral proceedings, the petitioner had considered that the board should not apply the "essentiality test" under the guise of the "gold standard", then it should have alerted the board to its view. The EBA concluded that there had been no violation of the petitioner’s right to be heard with respect to the second asserted procedural deficiency. Concerning the third asserted procedural deficiency, the EBA recalled the criteria laid down in R 8/15 and R 10/18. It held that in line with point 1 of the Catchword of R 8/15, the board had addressed submissions it had identified as being relevant, in the reasons for the decision. The question was whether the board had also substantively considered those submissions as also required in point 1 of that Catchword. The EBA held that this had been the case and thus considered the third asserted procedural deficiency clearly unfounded. The EBA concluded that the petition for review was clearly unallowable, since none of the three asserted fundamental deficiencies constituted a violation of the right to be heard.