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The European Patent

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Boards of appeal

Cases received and settled

In the course of 2007 the EPO's boards of appeal registered 2 153 new cases, a 7.5 % increase on the year before (2006: 2 003), and they settled 1 702 appeals (2006: 1 599). Fig. 1

The technical boards received 2 090 new appeals (2006: 1 967) and settled 1 661 cases (2006: 1 553). At the end of the year, 792 appeals had been pending for over two years (2006: 734). The number of new PCT protests filed with the technical boards increased significantly to 41, compared with 29 in 2006, and 41 cases were settled. Fig. 2

Fifteen new appeals were brought before the Legal Board of Appeal (2006: 18), which settled 21 cases (2006: 26), while the Disciplinary Board received 46 new appeals (2006: 15) and settled 17 cases (2006: 20).

Enlarged Board of Appeal

In 2007 there were two new referrals to the Enlarged Board of Appeal (2006: 3) and three cases were settled (2006: 0).

In June, the Enlarged Board decided on joined cases G 1/05 and G 1/06 concerning the validity of divisional applications, finding among other things that a divisional application which at its actual date of filing contains subject-matter extending beyond the content of the earlier application as filed can be amended later so that its subject matter no longer extends thus, even at a time when the earlier application is no longer pending.

This had been preceded by the Enlarged Board's interlocutory decision of December 2006 in G 1/05, concerning the requirements for the replacement of a member of the Enlarged Board where a member gave a ground which might constitute a possible ground for an objection of partiality. The Board also considered the alleged partiality of a member of the Enlarged Board on the grounds that a position on the matter had been adopted in a prior decision of a board of appeal in which the Enlarged Board member concerned had participated.

The referral which was pending under G 3/06 was terminated following withdrawal of the appeals. Thus there are currently three cases pending before the Enlarged Board, all of them based on referrals by the boards of appeal. G 2/06 concerns the exclusion from patentability of human embryonic stem cell cultures prepared by a method which necessarily involves the destruction of the human embryos from which the cultures are derived. G 1/07 concerns methods for treatment by surgery and among other things the question of whether a claimed imaging method for a diagnostic purpose, which comprises or encompasses a step consisting in a physical intervention practised on the human or animal body, is to be excluded from patent protection as a method for treatment of the human or animal body by surgery pursuant to Article 52(4) EPC if that step does not per se aim at maintaining life and health. Finally, G 2/07 relates to a non-microbiological process for the production of plants which contains the steps of crossing and selecting plants, the question being whether such a process escapes the exclusion of Article 53 (b) EPC merely because it contains an additional feature of a technical nature as a further step or as part of any of the steps of crossing and selection.

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