5. Decisions of the Administrative Council: boards of appeal not formally bound

In J 16/96 (OJ 1998, 347) the issue was whether an association of representatives within the meaning of R. 101(9) EPC 1973 could also be formed by professional representatives who did not work in private practice. The Administrative Council of the European Patent Organisation had decided at its 4th meeting in 1978 that an association within the meaning of this rule could only be an association consisting of professional representatives in private practice. The Legal Board of Appeal pointed out that in their decisions the boards of appeal were not bound by any instructions and complied only with the provisions of the EPC 1973 (Art. 23(3) EPC 1973). The boards of appeal could not be formally bound by a decision of the Administrative Council concerning a question of interpretation, nor could such a decision be deemed to be an instruction for their decisions. However, such a decision was a relevant element in interpretation. Interpreting the case in accordance with Art. 31(1) of the Vienna Convention, the board concluded that an association within the meaning of R. 101(9) EPC 1973 could also be an association of representatives not engaged in private practice. The intended aim of the Council's decision, which was to eliminate ambiguities in the application of R. 101(9) EPC 1973, had, in the light of recent developments in the profession, not been achieved, and as such the decision was less important in relation to the other factors involved in interpretation.

In G 3/19 the Enlarged Board concluded that, in view of the clear legislative intent of the contracting states as represented in the Administrative Council and having regard to Art. 31(4) Vienna Convention, the introduction of R. 28(2) EPC allowed and indeed called for a dynamic interpretation of Art. 53(b) EPC. In the referral decision (T 1063/18), the board had held that, although the Administrative Council was competent to amend the Implementing Regulations pursuant to Art. 33(1)(c) EPC, this competence did not extend to amending an Article of the Convention, here Art. 53(b) EPC.