2.5.4 Stay of appeal proceedings following a referral

It follows from Art. 112(3) EPC that the proceedings before the referring board are stayed until the Enlarged Board gives its decision. Proceedings before other boards of appeal may also be stayed.

In T 426/00 of 27 June 2003 date: 2003-06-27, the board had to answer questions that were identical to the questions raised in a referral pending before the Enlarged Board (concerning Art. 123(2) EPC, disclaimers). The board raised the purpose of ensuring a uniform application of the law under Art. 112 EPC and the need to comply with the spirit of Art. 16 RPBA 1980 (Art. 21 RPBA 2020; see in this chapter V.B.2.3.6). In order not to anticipate the Enlarged Board's evaluation of the questions before it, the board suspended the appeal proceedings.

In T 1875/07, the board acknowledged the patentability of the invention under Art. 52(2) EPC but did not consider the claimed subject-matter to be inventive. A referral on Art. 52(2) EPC was pending before the Enlarged Board. According to the board, the legal basis on which an application is refused determines only the reasons for the decision, but not the decision itself. Since the decision in the appeal proceedings did not depend entirely on the outcome of the referral, the board refused the request to suspend the appeal proceedings (see also T 787/06, T 1044/07 and T 1961/09).