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

The version of the Rules of Procedure of the Boards of Appeal (RPBA) most recently entering into force at the time of writing is referred to as the RPBA 2007. A new version was drafted in 2018 and will be adopted after completion of a user consultation exercise. Its adoption procedure will differ 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 section and the case law cited here are concerned with the RPBA 2007 or earlier versions.

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 the Presidium of the Boards of Appeal adopted the RPBA. And pursuant to R. 13(2) EPC 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. The Enlarged Board pointed out that Art. 23(4) EPC 1973 states that the RPBA "shall be adopted in accordance with the provisions of the Implementing Regulations". In the view of the Enlarged Board this was clearly directed to the mechanism set out in R. 11 EPC 1973, which states that the authority referred to in R. 10(2) EPC 1973 (the "Presidium") "shall adopt" the RPBA. The Enlarged Board concluded that the power under Art. 23(4) EPC 1973 to amend the RPBA belonged to the Presidium of the boards of appeal, subject to the approval of the Administrative Council. The Enlarged Board further stated that, according to Art. 33(1)(b) EPC 1973, the Administrative Council was competent to amend the Implementing Regulations. However, the Administrative Council was not entitled to amend the Implementing Regulations in such a way that the effect of an amended rule would be in conflict with the EPC 1973 itself (Art. 164(2) EPC 1973). 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 Administrative Council must be presumed to know the limits of its own power. It was therefore reasonable to assume that the Administrative Council did not intend to amend R. 71 EPC 1973 so as to provide a conflict with a rule of procedure of the boards of appeal which it had itself previously approved.

The RPBA 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).