1.2.4 Courts according to national case law

In R 1/10 the Enlarged Board of Appeal confirmed that the EPO boards of appeal were set up as required by the rule of law. Several high-ranking national courts of EPC contracting states (in particular, the UK's Patents Court and Germany's Federal Court of Justice (Bundesgerichtshof) and Federal Constitutional Court (Bundesverfassungsgericht)) had declared the boards of appeal to be independent courts based on the rule of law (see also R 19/12 of 25 April 2014 date: 2014-04-25) and recognised their decisions as those of such a court which they took into consideration when developing their case law.

In J 3/95 date: 1997-02-28 (OJ 1997, 493) the Legal Board of Appeal stated that the status of the boards of appeal had been addressed by the High Court of Justice in the United Kingdom (Patents Court) in R. v The Comptroller of Patents, Designs and Trade Marks ex parte Lenzing AG. The High Court held that "the final arbiter of revocation under the new legal system [of the EPC] is to be the Board of Appeal of the EPO", and that "the UK and the other Member States have agreed at an international level via the EPC that the BoA is the final arbiter of oppositions. It is the agreed EPO equivalent of the House of Lords, Cour de Cassation or Bundesgerichtshof... Those who apply for patents in the EPO must accept the results of its findings and its methods of procedure". This decision also acknowledged that the boards of appeal constitute a specialised court exercising judicial authority within the meaning of Art. 32 TRIPS (see in this chapter VII.1.2.3).