Posted: January 8th, 2010
Since the entering into force of the European Patent Convention in its revised version (EPC 2000) on 13 December 2007, decisions of the Boards of Appeal of the EPO are subject to review by the Enlarged Board of Appeal (EBA) on the grounds that a fundamental procedural defect as defined in the EPC occurred in the appeal proceedings. Until the end of 2009, 32 petitions were filed.
Inter alia, he alleged a personal interest of the members in the outcome of the proceedings, arguing that the EBA set the binding standards for examining the grounds for review, in particular fundamental violations of the right of the parties to be heard. The three members being themselves members of the Boards of Appeal would be personally affected by the principles and criteria developed by them in the EBA since those standards would be applicable to themselves in future review cases concerning decisions in which they had acted as members of a Technical Board of Appeal or of the Legal Board of Appeal.
The EBA holds in its interim decision that the objection is inadmissible since it is not based on grounds recognized in law. Emphasizing the extraordinary character of the new remedy and pointing to the travaux préparatoires of Article 112a EPC, the EBA states that the legislator had taken the deliberate decision to entrust the EBA as an existing body the task of examining petitions for review. Being aware of the fact that all technical members and most of the legal members of the EBA were also members of the Boards of Appeal, it was the legislator’s clear intention that these members should act in review cases. Noting that Article 112a EPC and Rule 109 EPC were created at the same time, the EBA states that the contradiction alleged by the petitioner between Rule 109 (2) EPC, requiring the participation of a technically qualified member, and the Convention itself did not exist. For these reasons, the EBA concludes that the petitioner’s submissions do not support the objection.
Read the decision (in German) here.