1.2. Boards of appeal as judicial authorities

In ex parte case T 1473/13 the appellant's request for a stay of proceedings mentioned constitutional complaints pending before the German Federal Constitutional Court (FCC) on the basis of claimed insufficient judicial relief at the EPO against decisions of the boards of appeal. The board highlighted the purpose of R. 14 EPC as set out in J 2/14: "to prevent a non-entitled applicant from impairing the position of a potential true proprietor by amending or even withdrawing the application without the latter's consent". In the case in hand, the board stated that what was at stake was the power of the board to decide upon, in particular refuse, a patent application, a power that a future FCC judgment might have an impact on. For the board it was not obvious that any FCC decisions on the constitutional complaints would have direct legal implications beyond those cases concerned. With reference to one of the constitutional complaints, the board explained that the appellant in the case in hand had not stated why and how a ruling on certain provisions of the EPC, its Implementing Regulations, the RPBA and the RPEBA could impact on other board decisions with effect for Germany. Neither the complainant in the constitutional complaint in its requests nor the appellant in its request for stay of proceedings even mentioned the German Act of Assent to the EPC embodying the order to apply the EPC in Germany, and the possible consequences of the nullity of the Act. For these reasons alone, the board found the request seeking a stay of the proceedings must fail. It held that the appellant had also stated no possible disadvantage from a decision of the board in the case in hand in case of success of the constitutional complaints. The board held that in the absence of an established disadvantage for the appellant, the respective adverse consequences of staying or not staying the proceedings (i.e. the delay of the proceedings) could not be balanced. Consequently, the board held the request for a stay must be refused.