In order to ensure uniform application of the law or if a point of law of fundamental importance arises, the President of the EPO may refer a point of law to the Enlarged Board of Appeal (Art. 112(1)(b) EPC).
In G 3/08 (OJ 2011, 10), the Enlarged Board held that, in exercising his or her right of referral a President of the EPO is entitled to make full use of the discretion granted by Art. 112(1)(b) EPC, even if his or her appreciation of the need for a referral has changed after a relatively short time. Different decisions by a single technical board of appeal in differing compositions may be the basis of an admissible referral by the President of the EPO of a point of law to the Enlarged Board of Appeal pursuant to Art. 112(1)(b) EPC. As the wording of Art. 112(1)(b) EPC is not clear with respect to the meaning of "different/abweichende/divergentes" decisions the provision has to be interpreted in the light of its object and purpose according to Art. 31 of the Vienna Convention on the Law of Treaties. The purpose of the referral right under Art. 112(1)(b) EPC is to establish uniformity of law within the European patent system. Having regard to this purpose of the presidential right to refer legal questions to the Enlarged Board of Appeal, the notion "different decisions" has to be understood restrictively in the sense of "conflicting decisions".