BOARDS OF APPEAL
Information from the Enlarged Board of Appeal
Rules of procedure of the Enlarged Board of Appeal
Version consolidating the amendments published in OJ EPO 1989, 362; OJ EPO 1994, 443, and in OJ EPO 2003, 58.
Article 1
Business distribution scheme
(1)1 Before the beginning of each working year, the members of the Enlarged Board of Appeal appointed under Article 11, paragraph 3, EPC shall draw up a business distribution scheme for all points of law that shall be referred during the year. The scheme may be amended during the working year.
(2) In proceedings before the Enlarged Board of Appeal at least four of the members shall not have taken part in the proceedings before the Board of Appeal referring the point of law.
Article 2
Replacement of members
(1) Reasons for replacement by alternates shall in particular include sickness, excessive workload, and commitments which cannot be avoided.
(2) Any member who wishes to be replaced by an alternate shall inform the Chairman of the Board of his unavailability without delay.
Article 3
Exclusion and objection
(1) If the Board has knowledge of a possible reason for exclusion or objection which does not originate from a member himself or from any party to the proceedings, then the procedure of Article 24, paragraph 4, of the Convention shall be applied.
(2) The member concerned shall be invited to present his comments as to whether there is a reason for exclusion.
(3) Before a decision is taken on the exclusion of the member, there shall be no further proceedings in the case.
Article 4
Rapporteurs
(1) The Chairman of the Board shall for each point of law designate a member of the Board, or himself, as rapporteur. The Chairman may appoint an additional rapporteur.
(2) If an additional rapporteur is appointed, the steps referred to in paragraphs 3 to 5 shall be taken by the rapporteur and additional rapporteur jointly unless the Chairman directs otherwise.
(3) The rapporteur shall carry out a preliminary study of the point of law and may prepare communications to the parties subject to the direction of the Chairman of the Board. Communications shall be signed by the rapporteur on behalf of the Board.
(4) The rapporteur shall make the preparations for meetings of the Board and for oral proceedings.
(5) The rapporteur shall draft decisions.
(6) If a rapporteur or additional rapporteur considers that his knowledge of the language of the proceedings is insufficient for drafting communications or decisions, he may draft these in one of the other official languages. His drafts shall be translated by the European Patent Office into the language of the proceedings and the translations shall be checked by the rapporteur or by another member of the Board.
Article 5
Registry
(1) A Registry shall be established for the Enlarged Board of Appeal. The Senior Registrar of the Boards of Appeal shall be responsible for the discharge of its functions.
(2)1 The members of the Enlarged Board of Appeal appointed under Article 11, paragraph 3, EPC may entrust to the Senior Registrar tasks which involve no technical or legal difficulties, in particular in relation to arranging for inspection of files, issuing summonses to oral proceedings and notifications and granting requests for further processing of applications.
(3) Minutes of oral proceedings and of the taking of evidence shall be drawn up by the Senior Registrar or such other employee of the Office as the Chairman may designate.
Article 6
Attendance of interpreters
If required, the Chairman of the Board shall make arrangements for interpreting during oral proceedings, the taking of evidence or the deliberations of the Board.
Article 7
Change in the composition of the Board
(1) If the composition of the Board is changed after oral proceedings, the parties to the proceedings shall be informed that, at the request of any party, fresh oral proceedings shall be held before the Board in its new composition. Fresh oral proceedings shall also be held if so requested by the new member and if the other members of the Board have given their agreement.
(2) The new member shall be bound to the same extent as the other members by an interim decision which has already been taken.
(3) If, when the Board has already reached a final decision, a member is unable to act, he shall not be replaced by an alternate. If the Chairman is unable to act, the legally qualified member of the Board having the longest service on the Board or, in the case where members have the same length of service, the eldest member shall sign the decision on behalf of the Chairman.
Article 8
Consolidation of points of law
If two or more points of law have been submitted with the same or similar subject-matter, the Board may consider them in consolidated proceedings.
Article 9
Oral proceedings
(1) If oral proceedings are to take place, the Board shall endeavour to ensure that the parties have provided all relevant information and documents before the hearing.
(2)1 The Board may send a communication drawing attention to matters which seem to be of special significance, or to the fact that questions appear no longer to be contentious, or containing other observations that may help concentration on essentials during the oral proceedings.
(3)1 A change of date for oral proceedings may exceptionally be allowed in the Board's discretion following receipt of a written and reasoned request made as far in advance of the appointed date as possible and copied to any other parties who shall as promptly as possible inform the Board whether or not they agree.
(4)1 The Board shall not be obliged to delay any step in the proceedings, including its decision, by reason only of the absence at the oral proceedings of any party duly summoned who may then be treated as relying only on its written case.
(5)1 The Chairman presides over the oral proceedings and ensures their fair, orderly and efficient conduct.
(6)1 When a case is ready for decision during oral proceedings, the Chairman shall state the final requests of the parties and declare the debate closed. No submissions may be made by the parties after the closure of the debate unless the Board decides to re-open the debate.
(7)1 The Board shall ensure that each case is ready for decision at the conclusion of the oral proceedings, unless there are special reasons to the contrary. Before the oral proceedings are closed, the Board's decision may be announced orally by the Chairman.
Article 10
Communications to the parties
If the Board deems it expedient to communicate with the parties regarding a possible appreciation of substantive or legal matters, such communication shall be made in such a way as not to imply that the Board is in any way bound by it.
Article 11
Deliberations preceding decisions
Only members of the Board shall participate in deliberations; the Chairman may, however, authorise other officers to attend. Deliberations shall be secret.
Article 11a
EPO President's right to comment
The Board may, on its own initiative or at the written, reasoned request of the President of the European Patent Office, invite him to comment in writing or orally on questions of general interest which arise in the course of proceedings pending before it. The parties shall be entitled to submit their observations on the President's comments.
Article 11b
Statements by third parties
(1) In the course of proceedings before the Board, any written statement concerning the points of law raised in such proceedings which is sent to this Board by a third party may be dealt with as the Board thinks fit.
(2) The Board may announce further provisions concerning such statements in the Official Journal of the European Patent Office if it seems appropriate.
Article 12
Order of voting
(1) During the deliberations between members of the Board, the opinion of the rapporteur shall be heard first, followed by that of the additional rapporteur if one has been appointed and, if the rapporteur is not the Chairman, the Chairman's last.
(2) If voting is necessary, votes shall be taken in the same sequence; even if the Chairman is the rapporteur, he shall vote last. Abstentions shall not be permitted.
Article 12a
Reasons for the decision
The decision of the Board shall be in accordance with the votes of the majority of its members. If a majority of the members of the Board agrees, the reasons for such decision may also indicate the opinions held by a minority of the members.
Neither the decision nor its reasons may indicate either the names of the members forming any such minority or the size of such minority.
Article 13
Opinions on points of law
The foregoing provisions shall apply mutatis mutandis to opinions on points of law referred to the Board by the President of the EPO pursuant to Article 112(1)(b) of the Convention.
Article 14
Binding nature of the Rules of procedure
These Rules of procedure shall be binding upon the Enlarged Board of Appeal, provided that they do not lead to a situation which would be incompatible with the spirit and purpose of the Convention.
Article 152
Entry into force
These Rules of procedure shall enter into force on the date on which they are approved by the Administrative Council of the European Patent Organisation.
1 Amendment adopted by decision of the Enlarged Board of Appeal of 28 October 2002 and approved by decision of the Administrative Council of 12 December 2002 (OJ EPO 2003, 58).
2 The amendments adopted by the Enlarged Board of Appeal on 28 October 2002 enter into force on 1 May 2003 (see Article 2 of the decision of the Enlarged Board of Appeal together with Article 2 of the decision of the Administrative Council of 12 December 2002; OJ EPO 2003, 58).