Appeal procedure before the European Patent Office

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Decisions of the first instances of the European Patent Office (EPO) can be appealed, i.e. challenged, before the Boards of Appeal of the EPO, in a judicial procedure (proper to an administrative court), as opposed to an administrative procedure. These boards act as the final instances in the granting and opposition procedures before the EPO.

In addition to the Boards of Appeal, the European Patent Office includes an Enlarged Board of Appeal. This board does not constitute an additional level of jurisdiction in the classical sense. This instance takes decisions only when the case law of the Boards of Appeal becomes inconsistent or when an important point of law arises. Its purpose is "to ensure uniform application of the law" ^[1] and to clarify or interpret important points of law in relation to the European Patent Convention.

Only the Boards of Appeal themselves and the President of the EPO can refer a question to the Enlarged Board of Appeal. In the first case, the Enlarged Board issues a decision, while in the latter case it issues an opinion.

1 Appointment and independence
2 Decisions and opinions
- 2.1 Binding character
- 2.2 References
3 References
4 See also
5 External links

The members of the Boards of Appeal and of the Enlarged Board of Appeal are appointed by the Administrative Council of the EPO on a proposal from the President of the EPO, ^[2] and are employed of the European Patent Organisation.^{[citation needed]} In contrast, members of the search divisions and of the examining divisions of the EPO are employed by the European Patent Office.

Members of the Boards are only bound by the European Patent Convention. They are not bound by any instructions, such as the "Guidelines for Examination in the European Patent Office". They have a duty of independence. ^[3]

However, since "the [appeal] boards' administrative and organisational attachment to the EPO which is an administrative authority obscures their judicial nature and is not fully commensurate with their function as a judicial body" ^[4], there have been calls for creating, within the European Patent Organisation, a third judicial body alongside the Administrative Council and the European Patent Office. This third judicial body would replace the present Boards of Appeal and could be called the "Court of Appeals of the European Patent Organisation" ^[5] or the "European Court of Patent Appeals". ^[4] This third body would have his own budget, would have its seat in Munich, Germany and would be supervised "without prejudice to its judicial independence" by the Administrative Council of the EPO. ^[4] The EPO has also proposed that the members of the Boards of Appeal should be appointed for lifetime, "with grounds for termination exhaustively regulated in the EPC". ^[4] These change would however need to be approved by a new Diplomatic Conference.

The legal system established under the EPC differs from a common law legal system in that "[it] does not treat (...) established jurisprudence as binding." ^[6] Indeed, a decision of a Board of Appeal is only binding on to the department whose decision was appealed, in so far as the facts are the same (if the case is remitted to the first instance of course) ^[7] However, "[if] the decision which was appealed emanated from the Receiving Section, the Examining Division shall similarly be bound by the ratio decidendi of the Board of Appeal." ^[8]

A decision of the Enlarged Board of Appeal (pursuant to Article 112(1)(a) EPC) is only binding on the Board of Appeal in respect of the appeal in question, i.e. on the Board of Appeal which referred the question to the Enlarged Board of Appeal. In practice however, the Boards of Appeal rarely diverge from the case law established by the Enlarged Board of Appeal.

If "a Board [of Appeal] considers it necessary to deviate from an interpretation or explanation of the [EPC] given in an earlier decision of any Board [of Appeal], the grounds for this deviation shall be given, unless such grounds are in accordance with an earlier opinion or decision of the Enlarged Board of Appeal. The President of the European Patent Office shall be informed of the Board's decision." ^[9]

Each decision issued by the Boards of Appeal or by the Enlarged Board of Appeal, as well as each opinion of the Enlarged Board of Appeal, has an alphanumeric reference, such as decision T 285/93. The first letter of the reference gives an indication of the type of board which took the decision:

G - Enlarged Board of Appeal
T - Technical Board of Appeal
J - Legal Board of Appeal
D - Disciplinary Board of Appeal
W - Decision concerning PCT reserves

The last two digits give the year during which the appeal was lodged. Note that the letter "L" does not refer to a decision of a Board of Appeal but to a Legal Advice of the EPO ^[10], and that the letter "V" refers to decisions of Examination and Opposition Divisions. ^[11]

In addition to their alphanumeric reference, decisions are sometimes referred to and identified by their date. This enables to distinguish between decisions bearing the same alphanumeric reference but issued at a different date (e.g. T 843/91 of March 17, 1993 [1] and T 843/91 of August 5, 1993 [2], T 59/87 of April 26, 1988 [3] and T 59/87 of August 14, 1990 [4] or T 261/88 of March 28, 1991 [5] and T 261/88 of February 16, 1993 [6]). These cases are relatively rare however.