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Case Law of the Boards of Appeal

 
 
H. Interpretation of the EPC

 

  

As an international treaty, the European Patent Convention has to be interpreted in accordance with the rules of interpretation developed in the so-called "law of nations" or public international law. To the traditional kind of international treaty which regulates legal relations between States had to be added the treaty which directly creates and defines rights and duties for individuals and corporate bodies (G 5/83, OJ 1985, 64).

In the interpretation of international treaties which provide the legal basis for the rights and duties of individuals and corporate bodies it is necessary to pay attention to questions of harmonisation of national and international rules of law. The boards of appeal may take into consideration decisions and opinions given by national courts in interpreting the law (see G 5/83, OJ 1985, 64). Nevertheless, in the proceedings before the European Patent Office, such considerations do not exonerate a board of appeal from its duty as an independent judicial body to interpret and apply the European Patent Convention and to decide in last instance in patent granting matters. TRIPs provisions, like decisions of the European and International Courts of Justice and national decisions, are elements to be taken into consideration by the boards of appeal but are not binding on them (T 154/04, OJ 2008, 46).

Although the European Patent Organisation is not a party to the Vienna Convention on the Law of Treaties concluded on 23 May 1969 (hereinafter Vienna Convention), the principles of interpretation of Arts. 31 and 32 of the Vienna Convention are to be applied to the interpretation of the EPC even though its provisions do not apply to the EPC ex lege (G 5/83; G 2/08, OJ 2010, 456). The boards of appeal refer to legal sources outside the EPC, including, for example, Vienna Convention and the TRIPs Agreement. Thus the boards of appeal may be guided in their decisions by the provisions of other international instruments. However, they have no obligation to apply them directly (G 2/02 and G 3/02, OJ 2004, 483).