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The European Patent

A European success story for innovation

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Boards of appeal

Cases received and settled

In the course of 2009, the EPO's boards of appeal registered 2 543 new cases, a 3.2 % increase on the year before (2008: 2 464 cases), and they settled 1 979 appeals, a 7 % increase in production over the 2008 figure of 1 849. Fig. 1

The technical boards received 2 484 new appeals (2008: 2 403) and settled 1 918 cases (2008: 1 782). Nine new PCT protests were filed with the technical boards (2008: 41), and 25 cases were settled (2008: 45). Fig. 2

20 new appeals were brought before the Legal Board of Appeal (2008: 18), which settled 21 cases (2008: 13), while the Disciplinary Board received 17 new appeals (2008: 28) and settled 24 cases (2008: 50).

Petitions for review by the Enlarged Board of Appeal

In 2009 the Enlarged Board of Appeal received 21 petitions for review (2008: 11) under the new procedure introduced by the EPC 2000 which allows parties to appeal proceedings to file such petitions on the grounds that there has been a fundamental procedural defect or that a criminal act may have had an impact on the decision of a board of appeal. In the same period it handed down thirteen decisions on petitions for review (in 2008: 3). In one case (R 7/09) it found the petition to be allowable, judging that there had been a fundamental violation of Article 113 EPC because it deemed the statement setting out the grounds of appeal not to have been communicated to the petitioner, who had had no opportunity to comment on the grounds for the decision under review.

Enlarged Board referrals

In 2009, oral proceedings were held in three cases referred to the Enlarged Board of Appeal. The first case in point was G 2/08, where one of the questions referred was whether a medicament whose use to treat a particular illness was already known could be patented under the provisions of Articles 53 (c) and 54 (5) EPC for use in a different, new and inventive treatment by therapy of the same illness. The second hearing related to G 1/07, concerning the exclusion from patentability of methods for treatment by surgery, while the third concerned G 4/08, in which, inter alia, the question was whether an applicant whose PCT application had been filed in an official language of the EPO could choose another official language upon entry into the regional phase before the EPO.

Four more referrals are pending before the Enlarged Board. G 2/07 relates to the exclusion from patentability of essentially biological processes for the production of plants, and it has been joined with G 1/08, which relates to similar issues. In G 3/08, the President has referred a number of questions concerning the exclusion from patentability of computer programs as such. Finally, G 1/09 is concerned with the question of whether an application refused by the examining division remains pending until expiry of the period for filing an appeal when no appeal has been filed.  

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