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Case Law of the Boards of Appeal

 
 
9.2.1 General

In order to make possible a limited judicial review of decisions of the boards of appeal, the Enlarged Board of Appeal has been given the competence to decide on petitions for review under Art. 112a EPC. A petition for review may only be based on the grounds defined in the EPC. These are, firstly, fundamental procedural defects which occurred in appeal proceedings and, secondly, the existence of a criminal act which may have had an impact on a decision (Art. 112a(2) EPC). The list of grounds contained in Art. 112a(2) EPC and R. 104 EPC is exhaustive and an alleged procedural defect which does not appear on that list cannot form the basis of a petition for review (R 1/08, R 16/09, R 17/09, R 18/09, R 4/11 and R 6/11).

According to the case law, Art. 112a EPC provides an exceptional means of redress, which provisions have to be applied strictly. Thus, it is not the purpose of Art. 112a EPC that a case be decided upon by a department of third instance, but rather it provides the right for a judicial review founded on a limited number of grounds that have been exhaustively defined by the legislator (Art. 112a(2) EPC in conjunction with R. 104 EPC) (R 1/08). Nor do the Enlarged Board's review powers provide for a general examination of whether the board which took the contested decision duly observed the rules of procedure applicable at the appeal stage. They are confined to examining fundamental violations of rules of procedure as defined in the EPC to which the petitioner has objected. The Enlarged Board is obviously entitled to examine the purported violation of a rule of procedure with a view to ascertaining whether it entailed a fundamental violation of Art. 113 EPC within the meaning of Art. 112a(2)(c) EPC (R 2/08). Furthermore, as can be clearly derived from the legislative history of the provisions on petitions for review, under no circumstances can the petition for review be a means to review the correct application of substantive law (R 2/08, R 9/08, R 8/09, R 13/09 and R 4/11). The function of the petition for review is not to further the development of EPO procedural practice, generally, or to ensure the uniform application of the law. It follows that procedural defects which occurred in first instance proceedings cannot be the subject of a petition for review; decisions of the first instance are subject to judicial review by the boards of appeal (R 20/10).

In R 18/09 the Enlarged Board held that the principles set out in G 3/99 (OJ 2002, 347), also applied to petition proceedings, namely;

- a plurality of persons acting in common must be treated as a single party (a "group party"); and

- such a group party must act through a common representative.