Role of the Enlarged Board of Appeal
Referrals under Article 112 EPC
The main task of the Enlarged Board of Appeal is to ensure the uniform application of the European Patent Convention (EPC). It decides on points of law of fundamental importance referred to it either by a Board of Appeal or by the President of the EPO under the conditions laid down in Article 112(1) EPC. When a Board of Appeal, during pending appeal proceedings, and either of its own motion or following a party's request, refers a point of law to the Enlarged Board, the Enlarged Board will settle only this point without deciding on any other issue pending in the appeal case. The decision on the appeal itself is then taken by the referring Board, which is bound by the decision of the Enlarged Board in respect of the point of law which was referred. The President of the EPO may also make a referral, provided that the question relates to ensuring the uniform application of the law or to an important point of law and two Boards of Appeal have given different decisions on that question. In the case of a referral by the President of the EPO, which involves no pending appeal proceedings, the Enlarged Board acts as an advisory body and thus issues an opinion, rather than a decision, on the question of law referred.
Petitions for review under Article 112a EPC
The Enlarged Board's further task is a limited judicial review of decisions of the Boards of Appeal. It is competent to decide on petitions for review based on the grounds set out in Article 112a EPC, i.e. that a fundamental procedural defect has occurred or that a criminal act may have had an impact on the impugned decision. If the petition for review is successful, the appeal decision under review is set aside and the appeal proceedings are re-opened before the Boards of Appeal.
When deciding on referrals on points of law, the Enlarged Board is composed of five legally qualified members and two technically qualified members.
When deciding on petitions for review, the Enlarged Board of Appeal consists of three or five members, as laid down in Rule 109 EPC.
The members of the Enlarged Board of Appeal are drawn from the members of the Boards of Appeal and appointed by the Administrative Council of the European Patent Organisation. In order to promote the harmonisation of European patent law, the Administrative Council also appoints national judges from the EPC contracting states as external members of the Enlarged Board, who then take part in individual cases at the invitation of the Chairman of the Enlarged Board.