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1. Legal status of the EPO boards of appeal

Overview

1.1. The judiciary of the European Patent Organisation

In G 3/08 (OJ 2011, 10) the Enlarged Board held that the European Patent Organisation is an international, intergovernmental organisation, based on the separation of powers principle, which the sovereign contracting states have entrusted with the exercise of some of their national powers in the field of patents. The EPC assigns executive power to the Office to grant patents and to its President to manage the Office in organisational respects (Art. 4(3) and 10 EPC), while to the Administrative Council it assigns limited legislative powers restricted to lower-ranking rules (Art. 33 EPC), along with financial and supervisory powers. The boards of appeal, which in their decisions are bound only by the EPC (Art. 23(3) EPC), are assigned the role of an independent judiciary in this patent system (Art. 21 to 23 EPC; see also G 6/95, OJ 1996, 649, points 2 ff. of the Reasons), even if – at the time G 3/08 was rendered – they were not an independent organ of the Organisation (Art. 4(2) EPC) but structurally integrated departments of the Office (Art. 15 EPC; see also R 19/12 of 25 April 2014 and R 2/14 of 17 February 2015). Like the judiciary of any democratic entity based on the separation of powers principle, the boards of appeal guarantee the due process of law within the Organisation. They are also assigned interpretative supremacy with regard to the EPC in terms of its scope of application (see Art. 23(3) EPC). Under Art. 21(1) EPC they are responsible for reviewing decisions taken by the Office in grant and opposition proceedings. Their interpretation of the EPC is the basis for the practice established by the Office for the examination of patent applications and oppositions to granted patents.

Since then, at the 148th meeting of the Administrative Council of the European Patent Organisation (Munich, 29 and 30 June 2016), the Council approved a comprehensive reform package concerning the Boards of Appeal. The aims of the reform were to strengthen the Boards' organisational and managerial autonomy and increase their efficiency. The reform took effect within the existing framework of the European Patent Convention, without requiring its revision. It included, with effect from 1 July 2016, a new institutional framework. The Boards of Appeal and the Enlarged Board of Appeal, including their registries and support services, are now organised as a separate unit directed by the President of the Boards of Appeal.

Concerning the organisation of the Boards of Appeal and the Enlarged Board of Appeal, R. 12 EPC has been replaced by R. 12a to 12d EPC and R. 13 EPC has been amended.

At the 150th meeting of the Administrative Council of the European Patent Organisation (Munich, 14 and 15 December 2016), the first President of the Boards of Appeal was appointed. Delegation of functions and powers from the President of the European Patent Office to the President of the Boards of Appeal can be found in part XV. "Structural reform of the boards of appeal" of supplementary publication 1 of the Official Journal (published each year) "Information from the Boards of Appeal Presidium, business distribution and texts relating to the proceedings".

The main documents concerning the structural reform of the Boards of Appeal are: CA/16/15, 06.03.2015 (Proposal for a structural reform of the EPO Boards of Appeal); CA/43/16 Rev. 1, 30.06.2016 (Reform of the Boards of Appeal); CA/D 6/16, 30.06.2016, OJ 2016, A100 (decision of the Administrative Council amending the Implementing Regulations to the European Patent Convention); CA/D 7/16, 30.06.2016, OJ 2016, A101 (decision of the Administrative Council setting up a Boards of Appeal Committee – as a subsidiary body of the Administrative Council – and adopting its Regulations).

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