Appeal procedure before the European Patent Office
According to the European Patent Convention (EPC), appeals can be lodged with independent boards of appeal against decisions of the European Patent Office (EPO) , for example a rejection of a European patent application .
Overview
There are currently 28 technical boards of appeal, a legal board of appeal, an enlarged board of appeal and a board of appeal in disciplinary matters. The Boards of Appeal examine appeals against decisions by the Receiving Section, the Examining Divisions, the Legal Divisions and the Opposition Divisions of the EPO and act as the last resort in proceedings before the EPO. However, the boards of appeal are not empowered to review decisions of the EPO as an international authority under the Patent Cooperation Treaty (PCT) .
Since October 2017, the EPO's Boards of Appeal are no longer located at the EPO's headquarters in Munich, but in the city of Haar, 12 km east of downtown Munich .
The work of the boards of appeal is laid down in the rules of procedure of the boards of appeal (RPBA). The boards of appeal are only bound by the EPC . They are not bound by instructions and, in particular, are not bound by the guidelines for examination before the EPO.
Admissibility of a Complaint
According to Art. 107 sentence 1 EPC, an appeal against a decision is only open to those who were involved in the proceedings that led to the decision. An appeal within the meaning of Art. 107 EPC exists if the decision falls short of the request of the party to the proceedings. For an appeal to be admissible, the notice of appeal must be filed with the EPO within two months of the notification of the contested decision and the appeal fee must be paid. In addition, the statement of grounds must be submitted within four months of the announcement. If the appeal is admissible, the Board of Appeal examines whether the appeal is admissible on the merits.
Complaints procedure
An appeal has suspensive effect, which means that, for example, in the case of a rejected patent application, the effect of the rejection is suspended. If the complaint is admissible, it will be forwarded to the department of first instance that made the decision. If the appeal is not upheld by the department of first instance within three months of receipt of the grounds of the appeal, the department of first instance must refer the case to the Board of Appeal without delay and without comment.
After examining the admissibility of an appeal, the board has the discretion either, within the competence of the body responsible for the contested decision, to correct the decision or to refer the matter back to that body for further decision. When a board refers a case back to the first instance, it does so in particular to give the party the option of a second instance.
Oral proceedings during an appeal can take place at the request of the EPO or at the request of a party to the proceedings. The right to oral proceedings is part of procedural law codified under Article 116 EPC. Oral proceedings before the boards of appeal are public (EPC Article 116 (1)). The public can only be excluded under special circumstances. In contrast, oral proceedings before the examining divisions are not public under Article 116 (3) EPC. The list of public hearings before the EPO is available on the website
A decision of a board of appeal is only binding on the division whose decision was contested, provided that the facts are the same (EPC Article 111 (2), first sentence).
Ban on deterioration in bilateral complaints proceedings
In the case of a complaint about an objection procedure, the principle of the prohibition of "reformatio in peius" applies. If only the patent proprietor files an appeal against an interlocutory decision on the maintenance of the patent in an amended form, neither the Board of Appeal nor the non-appealing opponent can question the grantability of the patent under the interim decision. If only one opponent files an appeal against the maintenance of the challenged patent in amended form, the patent proprietor is limited to defending the patent in the version to which the decision on maintenance in amended form referred and can no longer apply the patent in the amended form defend originally granted form.
Enlarged Board of Appeal
In addition to the Boards of Appeal, the European Patent Office has an Enlarged Board of Appeal , which, however, does not constitute additional case law in the classic sense, but has the task of ensuring the uniform application of the EPC. The Enlarged Board of Appeal decides on questions of fundamental importance for the interpretation of the EPC, which can be referred to it either by a board of appeal or by the President of the EPO.
According to Article 112 (1) (a) EPC, a decision of the Enlarged Board of Appeal is binding on the Board of Appeal only in relation to the appeal in question; H. for the Board of Appeal, which referred the question to the Enlarged Board of Appeal. If a board considers it necessary to deviate from an opinion or a decision of the Enlarged Board of Appeal, a request must be sent to the Enlarged Board of Appeal (Article 21 RPBA). For national courts such as the Federal Patent Court, however, the judgments of the EPO Boards of Appeal are not binding.
Sensational decisions by the Enlarged Boards of Appeal are G 2/12 ( tomatoes II ) and G 2/13 ( broccoli II ) of March 25, 2015, which concerned the patentability of biological products. The Enlarged Board of Appeal ruled that such products are patentable even if the corresponding process for making that product, being essentially biological, falls under the exclusion from patentability under Article 53 (b) EPC.
Independence of the members of the boards of appeal
According to Article 23 (1) EPC, the members of the Boards of Appeal and the Enlarged Board of Appeal are appointed by the Administrative Council of the European Patent Organization on a proposal from the President of the EPO . Members may only be removed from office during their five-year term in exceptional circumstances (Article 23 (1) EPC). The boards of appeal have been recognized as courts of an international organization, the EPO.
Individual evidence
- ↑ Boards of Appeal start work at the new location . European Patent Office. 2017. Retrieved February 18, 2019.
- ↑ Rules of Procedure of the Boards of Appeal. Retrieved March 7, 2019 .
- ↑ Guidelines for Examination. Retrieved February 26, 2019 .
- ↑ Calendar of oral proceedings before the EPO
- ↑ Case Law of the Boards of Appeal of the EPO . ( Chapter 3.1 ).
- ↑ Rudolf Teschemacher: Current case law of the Boards of Appeal of the EPA - Notes for practice . In: Current case law of the EPO Boards of Appeal - communications from German patent attorneys . No. 8–9, 2015, pp. 357–361.
- ↑ The Enlarged Board of Appeal stated in decision G 1/99 (OJ 2001, 381) that the appeal proceedings are to be regarded as judicial proceedings. See also the case law of the Boards of Appeal of the EPO . ( epo.org ). the chapter on the legal nature of the complaint procedure