In T 49/15 respondent 4 argued that the reasons for an objection referred to in Art. 24(3) EPC, and so the suspected partiality too, were relevant for the purposes of Art. 112a(2)(a) EPC, asserting in support of its position that the Enlarged Board had cited them in R 17/09. The board found that it had overlooked that the Enlarged Board had rejected the petition for review under Art. 112a(2)(a) EPC in that case as clearly unallowable. That, in doing so, it had chosen to look at the merits of the objection under Art. 24(3) EPC did not mean that the reference in Art. 112a(2)(a) EPC to Art. 24(1) EPC could be interpreted as including Art. 24(3) EPC too.

In the decision under review in R 3/16, the petitioner argued that once an objection based on Art. 24(3) EPC had been raised, the member(s) objected to could not take part in the decision, whatsoever, be it on the admissibility or on the merits of the objection. The Enlarged Board noted that Art. 112a(2)(a) EPC foresaw the situation where a member of the board had taken part in the decision despite being excluded pursuant to a decision under Art. 24(4) EPC or in breach of Art. 24(1) EPC. The case in hand was not concerned with those two grounds since the members had not been excluded and no personal interest had been alleged. Therefore, by a mere application of the principles developed by the established case law of the Enlarged Board under Art. 112a EPC, the Enlarged Board held that if the alleged unlawfulness of the composition was not the consequence of a violation of the right to be heard or an omission of a request, this ground (an objection based on Art. 24(3) EPC) appeared to fall outside the scope of a review, since inter alia it was not on the list of grounds under Art. 112a EPC.