Key points
- The decision of the OD was signed by the first and second member and the first member also signed for the chair, i.e. the chair did not sign the decision.
- The Board, in the headnote: “If a member of the department of first instance, who participated in the oral proceedings before that department, is unable to act at the time the reasoned decision is to be issued, for example due to death or a longer lasting illness, one of the other members may sign on behalf of the incapacitated member. However, in such a situation, a written explanation as to why one member is signing on behalf of another must be provided. In the absence of such an explanation, the contravention of Rule 113(1) EPC constitutes a substantial procedural violation”
- “The fact that the chair did not sign the decision, i.e. that the decision is tainted with a substantial procedural deficiency, does not render that decision "null and void" in the sense that it never had any legal effect, contrary to the conclusions drawn in T 390/86 (cf. point 8 of the Reasons). Rather, a reasoned decision affected by such a substantial procedural violation ceases to have a legal effect only if set aside by the competent Board of Appeal (T 2076/11, point 5 of the Reasons; see also J 8/18, point 2 of the Reasons).”
- The case is remitted back to the OD.
Reasons for the Decision
1. Signatures on the reasoned decision and the minutes
1.1 Pursuant to Rule 113(1) EPC, any decision from the European Patent Office must be signed by, and state the name of, the employee responsible.
1.2 The board endorses the established view that this requirement is not just a mere formality but an essential procedural step in the decision-taking process. The name and the signature serve to identify the decision's authors and express that they unconditionally assume responsibility for its content. The requirement laid down in Rule 113(1) EPC is aimed at preventing arbitrariness and abuse and at ensuring that it can be verified that the competent body has taken the decision. It therefore constitutes an embodiment of the rule of law. According to settled case law, a violation of the requirement under Rule 113(1) EPC amounts to a substantial procedural violation (cf. J 16/17, points 2.2 and 2.3 of the Reasons; T 2076/11, point 1 of the Reasons; T 989/19, point 3 of the Reasons). Moreover, a Board may address such a substantial procedural violation of its own motion (cf. T 989/19, point 2 of the Reasons).
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