3. The European Convention on Human Rights

In R 19/12 of 25 April 2014 date: 2014-04-25 the Enlarged Board of Appeal observed that Article 6 ECHR had been recognised in G 1/05 date: 2006-12-07 (OJ 2007, 362) and G 2/08 of 15 June 2009 date: 2009-06-15 as a binding standard for proceedings before the boards of appeal because it relied on principles of law common to all member states of the European Patent Organisation and applying to all its departments (see also D 11/91 of 14 September 1994 date: 1994-09-14 and chapter III.J.1.3. "The European Convention on Human Rights"). That justified applying both national case law and that of the European Court of Human Rights as a supplementary means of interpreting the EPC.

The board in T 1243/17 stated that the boards of appeal had deemed Art. 6(1) ECHR relevant for decisions taken under the EPC (particularly in the context of Art. 125 EPC) as a yardstick for the procedural law principles that are generally recognised in the contracting states (see T 261/88 date: 1991-03-28, OJ 1992, 627; G 1/05 date: 2006-12-07, OJ 2007, 362; G 2/08 date: 2009-06-15). Therefore, when Art. 6(1) ECHR was applied in EPO proceedings, it had to be interpreted by the EPO and its boards of appeal. Specifically, they had to decide whether or not the "reasonable time" stipulated in Art. 6(1) ECHR had been adhered to. The board analysed the case law of the European Court of Human Rights. It was not convinced that that case law was sufficient to demonstrate that the length of examination proceedings before the EPO could be systematically taken into account when assessing the reasonable time. Nonetheless, the board stated that the principles developed by the Court regarding the length of the proceedings provided a useful framework for assessing the length of proceedings. In the case in hand, the appellant had not formulated any specific claim in relation to the alleged violation of Art. 6(1) ECHR. See also the similar case T 2805/19.

In T 1787/16, the board observed that Art. 125 EPC stipulated that in the absence of any procedural provisions in the EPC, the principles of procedural law generally recognised in the contracting states to the European Patent Organisation were to be taken into account. This applied in particular to the legal principle of a right to a fair trial, as laid down for instance in Art. 6(1) ECHR, which was a general yardstick for shaping proceedings. It also included the requirement to word the decision so that it could be understood by any party with a command of the language of the proceedings.

In T 844/18 the appellant alleged that the established EPO interpretation interfered with the owners' right of peaceful enjoyment of their possessions. Moreover, it could even result in the loss of another property right, namely the patent, due to novelty-destroying intervening prior art. The board, considering the appellant's argument to be circular, did not explicitly address the alleged violation of Art. 1 of Protocol No. 1 to the ECHR (point 51 of the Reasons).