Appeal procedure before the European Patent Office - Definition and Overview

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. 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 are inconsistent with each other or when an important point of law arises. Its purpose is "to ensure uniform application of the law" (Art. 112(1) EPC [1] (http://www.european-patent-office.org/legal/epc/e/ar112.html)) and to clarify or interpret important points of 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. The Boards of Appeal are then bound by the decisions of the Enlarged Board of Appeal.

Appointment and independence

The members of the Boards of Appeal and of the Enlarged Board of Appeal are appointed by the Administrative Council of the EPO, 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.

However, 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 Board of Appeals and could be called the Court of Appeals of the European Patent Organisation [2] (http://www.ficpi.org/library/singaporeCET/CET-1404annex.pdf). This change would however need to be approved by a new Diplomatic Conference.

References of decisions

Each decision issued by the Boards of Appeal or by 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 [3] (http://www.european-patent-office.org/legal/anc_reg/en/ancreg_toc_vi.htm#ANCREG_TOC_VI), and that the letter "V" refers to decisions of Examination and Opposition Divisions [4] (http://legal.european-patent-office.org/dg3/help/coverage.htm).

See also

• European Court of Justice, the appeal court of the European Union, but which is not involved in the appeal procedure before the EPO

External links

• Search interface for the Decisions of the EPO Boards of Appeal (http://www.european-patent-office.org/dg3/search_dg3.htm)
• Case Law of the Boards of Appeal (http://www.european-patent-office.org/legal/case_law/e/index.htm)
• Administrative Council of the EPO (http://ac.european-patent-office.org/index.en.php)
• Rules of procedure of the Boards of appeal (http://www.european-patent-office.org/legal/anc_reg/en/ap_i_a23_4_2003_89.htm#OJ_2003_89) (consolidated version)
• Rules of procedure of the Enlarged Board of appeal (http://www.european-patent-office.org/legal/anc_reg/en/ap_i_a23_4_2003_58.htm#OJ_2003_58) (consolidated version)