4.3.2 "Fundamental" violation of Article 113 EPC – causal link and adverse effect

A violation of Art. 113 EPC can only be considered fundamental within the meaning of Art. 112a(2)(c) EPC if there is a causal link between the alleged violation and the final decision (R 1/08, R 11/08, R 11/09, R 13/09, R 6/13, R 2/14 of 22 April 2016, R 17/14, R 6/16).

In R 22/10 the Enlarged Board held, referring to the jurisprudence of the boards of appeal, that such a necessary causal link does not exist when, even if a procedural violation can be demonstrated, the same decision would have been taken for other reasons (see also R 19/09).

In R 8/16 the Enlarged Board held that an alleged violation could not be fundamental, in the sense of intolerable, if it did not cause an adverse effect. In the case in hand the Enlarged Board stated that the omission of the reasons for the admission of the main request may not be a practice which it expressly endorsed but given that the petitioner did not explain and the Enlarged Board itself could not see what adverse effect might have been caused by not hearing the petitioner on this issue, and given that the admission of the petitioner's main request was clearly a positive result for the petitioner, it was not seen as a fundamental violation of Art. 113(1) EPC.

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