2.3.2 Discretion of the board

Several decisions state that referring a question under Art. 112(1)(a) EPC lies within the discretion of the boards (see e.g. T 1016/10; T 365/05; T 1242/04, OJ 2007, 421). In T 390/90 (OJ 1994, 808) the board stated that the boards have discretionary power to refer any question to the Enlarged Board, either if a request for such reference has been made by a party, or if an important point of law arises and, in both cases, if the board considers that a decision by the Enlarged Board is required to ensure uniform application of the law or to decide upon the point of law that had arisen.

In G 3/98, (OJ 2001, 62) the Enlarged Board stated that while the view of the referring board is decisive for assessing whether a referral is required, such assessment should be made on objective criteria and should be plausible (see also G 2/99, OJ 2001, 83). One of the criteria identified in T 1242/04 was whether the question can be answered beyond all doubt by the board itself, in which case it does not need to be referred to the Enlarged Board (see also in this chapter V.B.2.3.7).

In T 560/13 the board noted that under Art. 21 RPBA 2007, a referral of questions to the Enlarged Board of Appeal must be made in cases where the board considers it necessary to deviate from an interpretation of the EPC contained in an earlier opinion or decision of the Enlarged Board of Appeal. It further noted that according to Art. 20(1) RPBA 2007, if a board wishes to deviate from an earlier decision taken by a board of appeal, a referral is not compulsory, but the board must give the grounds for deviation unless such grounds are in accordance with an earlier opinion or decision of the Enlarged Board (see also T 1676/08 and T 1020/03, OJ 2007, 204). Moreover, in G 1/98 the Enlarged Board stated that it was clearly desirable that whenever a board of appeal was aware that its decision involved a different interpretation of the law, on a point of substance and importance, from that applied in a decision of a previous board, that attention be drawn to this fact in its decision in a manner appropriate to the circumstances of the case, and that reasons be given for the different interpretation, so that the President of the EPO can take appropriate action (see also Art. 20(1) RPBA 2020).

In G 1/14 the Enlarged Board of Appeal held that while it was primarily up to the board of appeal to explain, in its referral decision, that – and why – it believed it needed an Enlarged Board ruling on the point arising in the case before it, the Enlarged Board must in any event examine whether the referral fulfilled the criteria of Art. 112(1)(a) EPC (including that a "decision is required") and was thus admissible.