The boards of appeal are located at the European Patent Office's headquarters in Munich, Germany. Following reform measures in 2016 and also to enhance the perception of their independence, the boards will move to a separate building in Haar, on the outskirts of Munich, during the second half of 2017. The boards consist of the Enlarged Board of Appeal, the Legal Board of Appeal and 28 technical boards of appeal.
Previously, the boards of appeal, together with their administrative services, were integrated into the organisational structure of the European Patent Office as Directorate-General 3. However, in 2016 a structural reform was introduced to reflect the fact that, although considered part of the Office under Articles 4(2) and 15 EPC, the boards have from the very start assumed the role of an independent judiciary, in accordance with Articles 21 to 23 EPC. It was therefore decided that the boards should be separated at the organisational level from the other parts of the Office, to the extent possible within the current framework of the EPC. To this end, the boards and their registries and support services have been made into a separate organisational unit. This is headed by the President of the Boards of Appeal, whose office has also been created under the reform.
The boards of appeal are independent of the Office in their decisions and are bound only by the European Patent Convention.
The members of the boards are bound only by the European Patent Convention (Article 23(3) EPC). According to the Convention, in their decisions the members of the boards are not bound by any other instructions whatsoever, whether from the President of the Office or from the national authorities or from any other party. The office of member of the boards of appeal is comparable to that of a judge of a national court which reviews decisions of administrative bodies.
Members and chairmen of the boards of appeal are appointed – upon a proposal from the President of the Boards of Appeal – by the European Patent Organisation’s Administrative Council for a term of five years (Articles 11(3) and 23(1) EPC). They may be re-appointed upon a proposal from the President of the Boards of Appeal. For an individual re-appointment, the President of the Boards of Appeal draws up a reasoned opinion which includes a performance evaluation. This reasoned opinion then serves as the basis for the Administrative Council's decision on re-appointment.
Technical boards are usually composed of two members from the relevant technical field as well as one legal member. The Legal Board of Appeal is composed of three legal members.
Vacancies are advertised inside the European Patent Office (EPO) and externally.
Based on the results of the selection procedure, a committee establishes a list of suitable candidates for the President of the Boards of Appeal, who in turn proposes a candidate to the European Patent Organisation's Administrative Council, which either accepts or rejects the candidate in accordance with the provisions laid down in the European Patent Convention.
The technical boards of appeal and the Legal Board deal with appeals filed in relation to decisions reached by the departments of first instance during and after the patent grant procedure, that is the Receiving Section and the Examining, Legal and Opposition Divisions.
They decide mostly on questions relating to the granting of and opposition to European patents under the European Patent Convention, but not on questions of patent infringement.
The Legal Board of Appeal deals mainly with appeals by parties adversely affected by decisions of the Receiving Section and the Legal Division.
The technical boards may order that an opposed patent be maintained in its entirety or in part only, or that it be revoked.
The Enlarged Board of Appeal deals with cases referred to it by a board of appeal for a decision on an important point of law or in order to secure uniform application of the law. The President may refer a point of law for opinion but only in cases where two boards of appeal have given different decisions on the same question. In such referral cases under Article 112 EPC the Enlarged Board of Appeal is composed of five legal members and two technical members.
Since the entry into force of the revised European Patent Convention in December 2007, the Enlarged Board of Appeal has also been competent to review decisions of the boards of appeal upon petition of a party (Article 112a EPC). Petitions for review may only be based on a fundamental procedural defect or on a criminal act that may have had an impact on the decision of the board of appeal.
Appeals may be filed by adversely affected parties, for example (and in the main) when the examining division refuses a patent application, or when the opposition division revokes a patent or maintains it in part or in its entirety following opposition proceedings. Such cases are then referred to a technical board of appeal in the relevant technical field, whose members review the decision reached by the examining division (ex parte cases) or opposition division (inter partes cases).
Note: Opposition is a legal remedy against a granted European patent. Although an opposition division become responsible later than the examining division, it is still a department of first instance. Anyone is free to contest the grant of a patent by filing an opposition within a period of nine months after the publication of the mention of the grant in the European Patent Bulletin. This then initiates a formal review process during which the patent is reconsidered in the light of the objections made by the opponent(s). The decision of the opposition division can then be appealed before the technical boards of appeal.
The boards of appeal currently receive about 2 800 new cases per year and settle over 2 300 cases. The average processing time - from the filing of the appeal to the issuing of the reasons for the decision - currently stands at around 37 months.
The Enlarged Board of Appeal deals with two to three referrals and around twenty review cases per year.
For further information, see the Annual report of the boards of appeal of the European Patent Office (Supplementary publication of the Official Journal.
The case law that results from the decisions of the boards plays a major role in the development of the European Patent Office's patenting practice. The publication "Case Law of the Boards of Appeal" appears in an updated edition every three years, in all three official languages of the EPO, and provides a structured selection of decisions of the boards. The most recent edition can be consulted free of charge at www.epo.org/case-law.
The current fee can be found under Article 2 item 11 of the Rules relating to Fees. This fee applies irrespective of the technical field and/or complexity of the case.
In the centralised procedures established by the European Patent Convention, the boards of appeal are the first and final judicial instance with appellate jurisdiction at European level. Accordingly, if a European patent is revoked by the technical board of appeal, there is no further legal remedy at national level. If, however, a patent is upheld at the end of the appeal procedure, a competitor may institute national nullity proceedings in a particular member state if, for example, he wants the patent to be declared invalid in that country. The boards of appeal cannot refer any questions of law to the European Court of Justice because the legal systems of the European Patent Office - i.e. that of the European Patent Convention - and the EU are not connected with each other.
The initiative to reorganise the boards of appeal as a separate unit achieved its purpose in 2016 when the Administrative Council of the European Patent Organisation, at its 148th meeting in Munich on 29 and 30 June 2016, approved a comprehensive reform package concerning the boards. The aims of the reform are to strengthen the boards’ organisational and managerial autonomy and increase their efficiency. The reform takes effect within the existing framework of the European Patent Convention, without requiring its revision. It includes a new institutional framework.
The boards of appeal and the Enlarged Board of Appeal, with their registrars and support services, are no longer integrated into the European Patent Office as Directorate-General 3, but form a separate organisational unit headed by the President of the Boards of Appeal.
The office of President of the Boards of Appeal was created by the 2016 reform. As head of the new organisational unit, the President of the Boards of Appeal, who is at the same time Chairman of the Enlarged Board of Appeal, carries out administrative and managerial duties delegated to him by the President of the office. Hierarchically, he is not subordinate to the President of the Office but reports to the Administrative Council on the boards’ activities.
The Boards of Appeal Committee (BOAC), which was also called into being as part of the reform, is a subsidiary body of the Administrative Council. The BOAC acts as a link between the Administrative Council and the Boards of Appeal Unit, reports to the Administrative Council and provides guidance to the Boards of Appeal Unit and its President on its management and organisation at a general level, especially with regard to efficiency and independence.
The Presidium of the boards of appeal remains in existence, albeit that Rule 12 EPC was deleted with effect from 1 July 2016. However, it is no longer responsible for adopting the Rules of Procedure of the Boards of Appeal (which it was under Rule 12(3) EPC), but retains an advisory function (see new Rule 12b(3)(c) EPC). Now the Rules of Procedure of the Boards of Appeal are adopted by the BOAC (Rule 12c(2) EPC), to which neither board members nor the President of the Boards of Appeal belong. The President of the Boards of Appeal and the President of the Office both have the right to attend BOAC meetings.