The replacement of board members under R. 108(3) EPC after a petition for review has been held allowable lies in the discretion of the Enlarged Board, to be exercised fairly and proportionately in the light of the facts (R 21/11).

In R 15/11 the Enlarged Board held that unless there was a compelling reason for proceeding otherwise, the Business Distribution Scheme must be adhered to and applied to a case re-opened before the board.

In R 16/13, the Enlarged Board rejected the request that members be replaced because it was not substantiated. In R 21/11, the Enlarged Board also rejected the petitioner's request that members be replaced, stating inter alia that such a replacement would necessitate the repetition of the whole appeal proceedings, which would be disproportionate. However, after the decision in R 21/11 had been taken, the chairman of the technical board concerned retired, and the appeal proceedings had, in any event, to be repeated. As a consequence, both the technically and the legally qualified member recused themselves under Art. 24(2) EPC (T 584/09 of 1 March 2013 date: 2013-03-01).