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EspañolAPPEAL PROCEDURE BEFORE THE EUROPEAN PATENT OFFICE
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.
After examining the allowability of an appeal, [1] a Board has the discretion to either "exercise any power within the competence of the department which was responsible for the decision appealed" (correction of a decision) or "remit the case to that department for further prosecution" (cassation of a decision). [1]
The legal system established under the EPC differs from a common law legal system in that "[it] does not treat (...) established jurisprudence as binding." [4] Indeed, a decision of a Board of Appeal is only binding on to the department whose decision was appealed, insofar as the facts are the same (if the case is remitted to the first instance of course) [1] 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." [1]
A decision of the Enlarged Board of Appeal (pursuant to ) 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." [7]
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, [1] and are employed of the European Patent Organisation. 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. [1]
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" [10], 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''" [11] or the "''European Court of Patent Appeals''". 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. 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". These change would however need to be approved by a new Diplomatic Conference.
Each decision of the Boards of Appeal and 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 indicates 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 under or [12]
The number before the oblique is the serial number, allocated by chronological order of receipt at the DG3, the Directorate General 3 (Appeals) of the European Patent Office. The last two digits give the year of receipt of the appeal in DG3. The letter "''L''" does not refer to a decision of a Board of Appeal but to a Legal Advice of the EPO, [13] while that the letter "''V''" refers to decisions of Examination and Opposition Divisions. [14]
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.
1.
2.
3.
4. T 740/98, Reasons 2.3
5.
6.
7. Article 15(1) Rules of Procedure of the Boards of Appeal
8.
9.
10. EPO web site, Legislative Initiatives in European patent law, Organisational Autonomy of the EPO’s Boards of Appeal. Retrieved on August 30, 2006.
11. Standing Advisory Committee Before the European Patent Office (SACEPO) ''Organisational autonomy of the Boards of Appeal of the European Patent Office within the European Patent Organisation'' June 6, 2003 (pdf)
12. European Patent Office, ''Case Law of the Boards of Appeal of the European Patent Office'', 5th edition, 2006, p. XXXII (Reader's Guide) (ISBN 3-89605-084-2).
13. EPO web site, VI. Legal Advice from the EPO. Retrieved on August 30, 2006.
14. EPO web site, EPO boards of appeal decisions - help section. Retrieved on August 30, 2006.
★ List of decisions and opinions of the Enlarged Board of Appeal of the European Patent Office
★ Board of Patent Appeals and Interferences (BPAI), US appeal court
★ European Court of Justice, the appeal court of the European Union, but which is not involved in the appeal procedure before the EPO
★ Peter Messerli, Vice-President of the European Patent Office, head of the DG 3 (Appeals)
★ ''Reformatio in peius''
★ ''Restitutio in integrum'' in patent law
★ EPO web site
★
★ Search interface for the Decisions of the EPO Boards of Appeal
★
★ Case Law of the Boards of Appeal
★
★ Administrative Council of the EPO
★
★ Rules of procedure of the Boards of appeal (RPBA) (consolidated version)
★
★ Rules of procedure of the Enlarged Board of appeal (RPEBA) (consolidated version)
★ EPO Board of Appeals Caselaw Statistics on IP Newsflash
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.
| Contents |
| Procedure |
| Binding character of decisions |
| Independence of the members of the Boards of Appeal |
| Case references |
| References |
| See also |
| External links |
Procedure
After examining the allowability of an appeal, [1] a Board has the discretion to either "exercise any power within the competence of the department which was responsible for the decision appealed" (correction of a decision) or "remit the case to that department for further prosecution" (cassation of a decision). [1]
Binding character of decisions
The legal system established under the EPC differs from a common law legal system in that "[it] does not treat (...) established jurisprudence as binding." [4] Indeed, a decision of a Board of Appeal is only binding on to the department whose decision was appealed, insofar as the facts are the same (if the case is remitted to the first instance of course) [1] 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." [1]
A decision of the Enlarged Board of Appeal (pursuant to ) 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." [7]
Independence of the members of the Boards of Appeal
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, [1] and are employed of the European Patent Organisation. 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. [1]
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" [10], 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''" [11] or the "''European Court of Patent Appeals''". 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. 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". These change would however need to be approved by a new Diplomatic Conference.
Case references
Each decision of the Boards of Appeal and 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 indicates 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 under or [12]
The number before the oblique is the serial number, allocated by chronological order of receipt at the DG3, the Directorate General 3 (Appeals) of the European Patent Office. The last two digits give the year of receipt of the appeal in DG3. The letter "''L''" does not refer to a decision of a Board of Appeal but to a Legal Advice of the EPO, [13] while that the letter "''V''" refers to decisions of Examination and Opposition Divisions. [14]
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.
References
1.
2.
3.
4. T 740/98, Reasons 2.3
5.
6.
7. Article 15(1) Rules of Procedure of the Boards of Appeal
8.
9.
10. EPO web site, Legislative Initiatives in European patent law, Organisational Autonomy of the EPO’s Boards of Appeal. Retrieved on August 30, 2006.
11. Standing Advisory Committee Before the European Patent Office (SACEPO) ''Organisational autonomy of the Boards of Appeal of the European Patent Office within the European Patent Organisation'' June 6, 2003 (pdf)
12. European Patent Office, ''Case Law of the Boards of Appeal of the European Patent Office'', 5th edition, 2006, p. XXXII (Reader's Guide) (ISBN 3-89605-084-2).
13. EPO web site, VI. Legal Advice from the EPO. Retrieved on August 30, 2006.
14. EPO web site, EPO boards of appeal decisions - help section. Retrieved on August 30, 2006.
See also
★ List of decisions and opinions of the Enlarged Board of Appeal of the European Patent Office
★ Board of Patent Appeals and Interferences (BPAI), US appeal court
★ European Court of Justice, the appeal court of the European Union, but which is not involved in the appeal procedure before the EPO
★ Peter Messerli, Vice-President of the European Patent Office, head of the DG 3 (Appeals)
★ ''Reformatio in peius''
★ ''Restitutio in integrum'' in patent law
External links
★ EPO web site
★
★ Search interface for the Decisions of the EPO Boards of Appeal
★
★ Case Law of the Boards of Appeal
★
★ Administrative Council of the EPO
★
★ Rules of procedure of the Boards of appeal (RPBA) (consolidated version)
★
★ Rules of procedure of the Enlarged Board of appeal (RPEBA) (consolidated version)
★ EPO Board of Appeals Caselaw Statistics on IP Newsflash
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