1.5. Nature of the case law of the boards of appeal – no binding precedents

In R 14/11 the Enlarged Board stated that, like any other decisions of boards of appeal, its decisions in petition for review cases do not have the legal nature of creating a precedent in the sense that it would have to show in which respect a later decision differs from an earlier one in order for that later decision to be legally justified. Referring to R 11/08 the Enlarged Board stated that such differences are normal and that the usefulness of case law is not confined to similar or identical facts but lies in the principles or guidance (such as interpretation of legislative provisions) which, whether the facts are similar or not, can be extracted from earlier cases.

In G 3/19 (OJ 2020, A119) the Enlarged Board stated that a particular interpretation which has been given to a legal provision can never be taken as carved in stone, because the meaning of the provision may change or evolve over time. This aspect is intrinsic to the ongoing development of the law by way of judicial decision-making, and, in the context of the jurisprudence of the boards of appeal, is reflected in Art. 21 RPBA 2020, which requires a board of appeal to make a referral to the Enlarged Board if it intends to deviate from an earlier decision or opinion of the Enlarged Board. Such a new referral would be pointless if there was no possibility, not even a theoretical one, that the Enlarged Board would revise its previous ruling on the point of law in question.

In T 844/18 the board was not persuaded by the appellants' submission of (part of) the non-binding preliminary opinion of the board in case T 239/16 (which did not find its way into the final decision) in support of their proposition that the EPO did not have competence or jurisdiction to determine who is entitled to the right of priority. Turning to the question of the interpretation of "any person" (Paris Convention), the board observed that there was no case law, either of the EPO or of national tribunals, that clearly and unambiguously adopted the interpretation proposed by the appellants. In general, the bar for overturning long established case law and practice should be a high one because of the disruptive effects a change may have. The board noted that the appellants were faced with over one hundred years of consistent case law and practice adopting the "all applicants" approach that they needed to show as incorrect. This was a considerable burden (point 53 of the Reasons). The bar to overturning long-established case law and practice should be very high because of the disruptive effects a change may have. The continuation of such long-standing and rationally based practices could be considered an aspect of legal certainty (point 86 of the Reasons).