3.1. Binding effect of requests – no reformatio in peius
3.1.3 Cases where reformatio in peius does not apply
In T 1178/04 (OJ 2008, 80) the board held that where the issue was a person's right to be a party, the principle of no reformatio in peius was of no application, bearing in mind the fact that the principle of no reformatio in peius was taken mainly from the well-established principle in German law ("Verschlechterungsverbot"). This principle has no application in those cases where (a) there exist procedural preconditions for making relevant requests to the court ("Verfahrensvoraussetzungen") and (b) these preconditions are of a kind that cannot be waived or dispensed with ("unverzichtbare Verfahrensvoraussetzungen"), such that the court must itself be satisfied that they have been fulfilled. According to the board, in the context of patent proceedings such as these, preconditions of this kind included the admissibility of the opposition itself and the capacity of a person to be a party to the proceedings in the first place.
Referring to T 1178/04, the board in T 384/08 found that the admissibility of the opposition is an indispensable procedural requirement for the substantive examination of the opposition submissions at every stage of the proceedings. The board therefore had to examine the question of the transfer of status of the opponent ex officio before dealing with the substance of the case.
- T 727/19
Catchword:
1. The Guidelines, Part E, Chapter XI, set out the procedure whereby the reasons of a responsible superior's decision rejecting a challenge to the impartiality of a division can be appealed. This procedure does not make the responsible superior's decision formally appealable (Reasons 2.3 and 2.4).
2. The unexplained omission of the reasons of the responsible superior's decision from the final decision of the division justifies the suspicion of partiality and constitutes a substantial procedural violation (Reasons 2.9 and 2.15).
3. The principle of the prohibition of "reformatio in peius" is not applicable where a case is to be remitted to a division in a new composition because of a suspicion of partiality (Reasons 5.5 and 5.6).
- T 882/17
Catchword:
If the opponent is the sole appellant against an interlocutory decision maintaining a patent in amended form, an objection related to the inadmissibility of the opposition is subject to the principle of the prohibition of reformatio in peius. In such a procedural situation, the Board is prohibited from ordering the maintenance of the patent as granted due to the inadmissibility of the opposition (Reasons 3.19).
- Annual report: case law 2022
- Summaries of decisions in the language of the proceedings