9.1. Referral under Article 112 EPC

Under Art. 112(1) EPC it is within the discretion of the boards of appeal to refer a case to the Enlarged Board of Appeal if this appears necessary for ensuring uniform application of the law or if a point of law of fundamental importance arises (under the EPC 1973, 'an important point of law'). It was made clear in T 184/91 that only questions on a specific point, not entire cases, can be referred to the Enlarged Board of Appeal.

In G 3/99 (OJ 2002, 347) the Enlarged Board of Appeal confirmed what had already been stated in decision G 8/92 (not published in the OJ), namely that, even if the Enlarged Board considered as a matter of principle that, for a referral to be admissible, the appeal had to be admissible, this did not apply if the referral itself concerned the admissibility of the appeal. Without this exception, in cases like the one before the board, the boards would be denied the opportunity to refer questions on important points of law concerning the admissibility of an appeal. This would have contradicted Art. 112(1)(a) EPC 1973 where no restrictions of that kind appear.

In the interlocutory decision of the Enlarged Board of Appeal G 3/08 dated 16 October 2009 the Enlarged Board noted that in referral cases under Art. 112 EPC members of the public who file amicus curiae briefs did not have the status of a party. They were not entitled to file requests but only to submit their personal view of the case since an amicus curiae was not a party to the referral proceedings any request was inadmissible under Art. 24(3) EPC. However, pursuant to Art. 4(1) RPEBA (OJ 2007, 304), the procedure of Art. 24(4) EPC was also to be applied, and under this provision the submissions of a third party were taken as information on the basis of which the board could ex officio look at the alleged grounds of objection or suspicion of partiality.

The following decisions concern mainly those cases in which the request for referral was refused, since the others have already been dealt with elsewhere.

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