9.5.3 Procedural violation must be committed by the department whose decision is under appeal

In T 469/92 the alleged procedural violation was not an act of the opposition division, whose decision was the subject of the appeal, but instead that of the examining division. Even if such an act were in breach of the procedural requirements of the Convention, a board of appeal would not have the power to order reimbursement.

In T 1875/07 the board stated that a substantial procedural violation could only be committed by one of the departments charged with the procedure mentioned in Art. 15 EPC 1973, not by the President acting under Art. 10 EPC 1973. Therefore, the non-disclosure to the public of the details of a system for performance evaluation for examiners cannot amount to a substantial procedural violation.

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