1.1. General

The provisions governing the appeal procedure are set out in Art. 106 EPC to Art. 111 EPC and R. 99 EPC to R. 103 EPC and in the Rules of Procedure of the Boards of Appeal. R. 100(1) EPC plays an important role since it stipulates that, unless otherwise provided, the provisions relating to proceedings before the department which had taken the decision impugned shall apply to appeal proceedings. This application by analogy is, however, not automatically permissible in every case and for every provision (G 1/94, OJ 1994, 787). Criteria therefore had to be established for when such an analogy was permissible and when not. To this end it was necessary to analyse the legal nature of the appeal procedure.

Appeal proceedings are wholly separate and independent from the proceedings at first instance. Their function is to give a judicial decision upon the correctness of a separate earlier decision taken by a department (T 34/90, OJ 1992, 454; G 9/91, OJ 1993, 408; G 10/91, OJ 1993, 420; T 534/89, OJ 1994, 464; T 506/91). In T 501/92 (OJ 1996, 261) the board deduced from this principle that any procedural request or statement made by a party during proceedings in the first instance was not applicable in any subsequent appeal proceedings, and had to be repeated during the latter if it was to remain procedurally effective.

The fact that the boards of appeal are courts was established in G 1/86 (OJ 1987, 447, point 14 of the Reasons). In decision G 1/99 (OJ 2001, 381) the Enlarged Board held that the appeal procedure is to be considered as a judicial procedure (see G 9/91, OJ 1993, 408, point 18 of the Reasons) proper to an administrative court (see G 8/91, OJ 1993, 346, point 7 of the Reasons; likewise G 7/91, OJ 1993, 356). In G 9/92 date: 1994-07-14 and G 4/93 (both OJ 1994, 875) it was decided that the extent of appeal proceedings is determined by the appeal.

These characteristics of the appeals procedure not only serve as criteria when assessing whether a provision may be applied analogously in individual cases; they also have general legal consequences in many respects. It follows from the characteristics set out by the Enlarged Board that the general principles of court procedure, such as the entitlement of parties to direct the course of the proceedings themselves ("principle of party disposition"), also apply to appeals (see G 2/91, OJ 1992, 206; G 8/91, G 8/93, OJ 1994, 887; G 9/92 date: 1994-07-14 and G 4/93), that a review of the decision taken by the department of first instance can, in principle, only be based on the reasons already submitted before that department (G 9/91, G 10/91), and that the proceedings are determined by the petition initiating them (ne ultra petita) (see G 9/92 date: 1994-07-14 and G 4/93). The Enlarged Board has also made it clear that the decision-making powers of opposition divisions, and of the boards in opposition appeal proceedings, are circumscribed by the statement under R. 55(c) EPC 1973 (R. 76(2)(c) EPC) of the extent to which the European patent is opposed. They have no powers to decide and thus investigate anything extending beyond that statement (see G 9/91). This defined the sphere of application of Art. 114(1) EPC 1973, and clarified the distinction between the power to initiate and determine the object of proceedings, on the one hand, and the power to examine the facts then relevant, on the other. The individual procedural consequences and the Enlarged Board's decisions are discussed in greater detail below.

It is established jurisprudence that the boards of appeal and the Enlarged Board of Appeal respectively act as judicial bodies, which were established by law, and apply general principles of procedural law (see G 3/08 date: 2010-05-12, OJ 2011, 10 and G 2/08 date: 2010-02-19, OJ 2010, 456).

In T 1676/08 the board went on to say that one of these principles is laid down in Art. 6(1) ECHR, relying on principles of law common to the member states of the European Patent Organisation and applying to all EPO departments of the said organisation, which requires inter alia in "… the determination of his civil rights and obligations … everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law". It is also established jurisprudence that, for inter partes proceedings before a board of appeal to be fair, the board must be neutral (see e. g. R 12/09 of 15 January 2010 date: 2010-01-15 and T 253/95).