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In T 557/94 the board discussed the TRIPS requirement for the judicial review of decisions revoking a patent. While recognising that the European Patent Organisation was not a party to TRIPS the board investigated whether the basic principle of judicial review under Art. 32 TRIPS was satisfied by the EPC 1973. It found that in any case, under Art. 111(1), second sentence, EPC 1973, the board of appeal was empowered either to decide on the merits of the case or to remit the case; it was not restricted to the latter alternative if the opposition division maintained the patent and the board was considering revoking the patent for the first time. Reading Art. 32 TRIPS in the context of the usual structure of judicial review in the EPC contracting states and the EPC 1973 itself, this provision guaranteed an instance for judicial review in revocation proceedings, but did not oblige the reviewing instance to remit the case to the department of first instance for continuation of proceedings when revocation was being considered by the judicial instance for the first time.
The right of the parties to fair proceedings if a relevant document was introduced only at the appeal stage was a quite different matter. According to the case law of the boards such a procedural situation called for careful consideration.
In T 1173/97 (OJ 1999, 609) the board, however, thought that, although TRIPS could not be applied directly to the EPC 1973, it was appropriate to take it into consideration in connection with the patentability of computer program products, for TRIPS was aimed at setting common standards and principles concerning the availability, scope and use of trade-related intellectual property rights. It thus gave a clear indication of current trends. The appellant's reference to current practice at the US and Japanese patent offices caused the board to emphasise that the legal position in the USA and Japan differed greatly from that under the EPC 1973; only the EPC 1973 contained an exclusion such as that in Art. 52(2) and (3) EPC 1973. These developments nevertheless represented a useful indication of modern trends and, in the board's view, could contribute to the further highly desirable (worldwide) harmonisation of patent law.