1.6. Nature of national case law – not binding on the boards of appeal

Proceedings before the boards are independent and decisions of national courts are not binding in law (see R 21/09, which is very detailed on this point, and, as examples of decisions dealing with the relationship between national case law and board decisions, T 1904/12, T 885/02, T 202/13, T 231/13, T 488/16).

Case T 2220/14 recalled the relationship between national decisions and procedures before the boards of appeal. In the latter questions of patentability are to be decided solely in accordance with the EPC. As regards decisions made on patentability in contracting states to the EPC, these are not to be cited as if they were binding upon the boards of appeal, and claims should not be refused because their patentability cannot be upheld under the jurisdiction of one member state (T 452/91). Such considerations also apply to decisions of courts of non-member states such as the USA (point 16 of the Reasons).

According to J 14/19 (stay of proceedings for grant – time from when national proceedings pending), the question when proceedings became pending was to be assessed under the (national) procedural law of the state in question. Where the EPO was called on to apply foreign law (here: German law), it had to do so within the overall context of the foreign legal system, wherever possible. As an international organisation independent of state authorities and courts, it was not bound by the case law of national courts when interpreting the foreign law to be applied (on the lack of binding effect of the case law of the European Court of Justice (ECJ), see R 1/10, point 2 of the Reasons) but, if aware of such case law, in particular of the highest national courts, it should nevertheless consider and evaluate it in coming to its decision. Since legal commentaries, by contrast, were not official publications and did not form part either of the law created by legislation or of the case law, they were not in themselves to be taken into account when applying foreign law. As regards the specific point of when proceedings were to be considered pending, the Legal Board further pointed out that, in the interests of a uniform European standard of interpretation, recourse could be had to the ECJ's case law on Art. 21 of the Brussels Convention, which not only matched Article 8 of the Protocol on Recognition in content but also predated it. In the context of that provision too, when proceedings were deemed to be pending was to be assessed for each court in line with its own national procedural law (ECJ Case 129/83).