1.4. Power to amend the RPBA under Article 23(4) EPC

The latest version of the Rules of Procedure of the Boards of Appeal (RPBA) in force at the time of publication of this edition of the Case Law book is the revised version which entered into force on 1 January 2020 (OJ 2019, A63; "revised version"). However, see Art. 25 RPBA 2020 for the transitional provisions. In this edition, the version previously in force is usually referred to as the RPBA 2007. As a rule, the boards of appeal refer to the revised version of the RPBA in their decisions explicitly as "RPBA 2020"; where "RPBA" alone appears in decisions issued recently but still before the RPBA 2020 entered into force, this implicitly refers to the RPBA 2007.

A draft of the new RPBA 2020 was drawn up in 2018 and circulated for user consultation before being adopted. Its adoption procedure differed from that for the earlier versions, a new one having been introduced on amendment of the Implementing Regulations to the EPC, in particular the deletion of R. 12 EPC and the insertion of R. 12a, R. 12b and R. 12c EPC, by decision CA/D 6/16 (OJ 2016, A100), which entered into force on 1 July 2016. Under this new procedure, it is now the Boards of Appeal Committee, a subsidiary body of the Administrative Council, that adopts the RPBA and the Rules of Procedure of the Enlarged Board of Appeal (RPEBA) (new R. 12c(2) EPC), while the Presidium advises the President of the Boards of Appeal on proposals for their amendment (new R. 12b(3)(c) EPC). This very general section and the case law reported in it still mainly refer to the RPBA 2007, or to previous versions. New sections have been included in this edition of the Case Law Book which deal with the changes introduced by the RPBA 2020; see on this point chapters III.B.2.7.3, III.C.6.1.4 r), III.C.6.4, V.A.2.6.3 g), V.A.3.2.1, V.A.4, V.A.8.1.1, V.A.8.1.2, V.A.9.1.2, V.A.9.4.1.

Since entering into force on 1 January 2020, the RPBA 2020 have been amended once to insert a new Art. 15a on oral proceedings held by videoconference (Art. 15a RPBA 2020 entered into force on 1 April 2021); see also the new provisions inserted into R. 117 and 118 EPC (taking of evidence by videoconference – CA/D 12/20 of 15 December 2020 (OJ 2020, A132), which entered into force on 1 January 2021). For more on oral proceedings by videoconference, see G 1/21 of 16 July 2021 date: 2021-07-16.

The RPBA and the RPEBA are adopted in accordance with the Implementing Regulations and subject to the approval of the Administrative Council (Art. 23(4) EPC; see OJ 2007, 536 and OJ 2007, 303). Until RPBA 2007, according to R. 12(3) EPC 1973 the Presidium of the Boards of Appeal adopted the RPBA. And pursuant to R. 13(2) EPC 1973 the members of the Enlarged Board of Appeal adopted the RPEBA. In T 1400/11 the board stated that proceedings before the boards of appeal are governed by the RPBA in order to guarantee their judicial function.

In 1994 the Administrative Council adopted R. 71a EPC 1973 to the effect that a communication must be issued by the EPO at the same time as a summons to oral proceedings is issued (OJ 1995, 409). In contrast to this requirement, Art. 11(2) RPBA 1980 (Art. 15(1) RPBA 2007) leaves it to the discretion of the boards of appeal whether or not to send a communication with such a summons. In G 6/95 (OJ 1996, 649) the Enlarged Board held that R. 71a(1) EPC 1973 did not apply to the boards of appeal. If R. 71a(1) EPC 1973 were to be interpreted as applying to all departments of the EPO, including the boards of appeal, its effect would be directly contradictory to and in conflict with the effect of Art. 11(2) RPBA 1980, which was adopted pursuant to Art. 23(4) EPC 1973 as the emanation of the independence of the boards of appeal.

The RPBA 2007 can help in clarifying and interpreting the EPC but they cannot confer on the boards any powers that the EPC does not give them (T 1914/12, citing Art. 23 RPBA in this context).