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Case Law of the Boards of Appeal

 
 
1. Introduction

Representation of natural or legal persons in proceedings established by the EPC may only be undertaken by professional representatives whose names appear on a list maintained for this purpose by the EPO (Art. 134(1) EPC). Any natural person who is a national of a contracting state, has his place of business or employment in a contracting state and has passed the European qualifying examination may be entered on the list (Art. 134(2) EPC). Under Art. 134(8) EPC (cf. Art. 134(7) EPC 1973), legal practitioners from the contracting states are also entitled to act as representatives, subject to the conditions specified therein.

Art. 134a EPC, introduced under the EPC 2000, incorporates the substance of former Art. 134(8) EPC 1973 and anchors in the Convention the existence of the Institute of Professional Representatives before the EPO ("epi").

For further information on representation before the EPO, see Chapter III.R, representation. For more details of the changes introduced by the EPC 2000, see also OJ SE 4 and 5/2007.

All persons on the list of professional representatives must be members of the epi (Art. 134a(2) EPC; see also Art. 5(1) of the Regulation on the Establishment of an Institute of Professional Representatives before the EPO, OJ 1997, 350; for amendments to the Regulation, see OJ 2002, 429, OJ 2004, 361 and OJ 2007, 12), and are subject to the Regulation on Discipline for Professional Representatives, adopted by the Administrative Council of the European Patent Organisation (RDR, OJ 1978, 91; as amended: OJ 2008, 14), and to the Code of Conduct of the Institute of Professional Representatives before the EPO, adopted by the epi (OJ 2003, 523). These provisions are also published in the Supplement to OJ 1 of each year.

The first instance bodies which rule on infringements of the rules of professional conduct are the epi Disciplinary Committee and the EPO Disciplinary Board (Art. 5 RDR; see also Additional Rules of Procedure of the Disciplinary Committee and of the Disciplinary Board, OJ 1980, 176, and 177 and 183, respectively; for amendments, see OJ 2007, 552; also published in Supplement to OJ 1 of each year).

The Disciplinary Board of Appeal (DBA) hears appeals against decisions of the epi Disciplinary Committee and the EPO Disciplinary Board (Art. 5, 8 RDR; see also Additional Rules of Procedure of the Disciplinary Board of Appeal, OJ 1980, 176 and 188; for amendments, see OJ 2007, 548; also published in Supplement to OJ 1 of each year ).

The European qualifying examination (EQE), referred to in Art. 134(2)(c) EPC, is governed in particular by the Regulation on the European qualifying examination for professional representatives before the EPO (REE, OJ 2009, 9; also Supplement to OJ 12/2011, 2), which entered into force on 1.1.2009, and by its Implementing provisions (IPREE, Supplement to OJ 5/2009, 20; as amended: Supplement to OJ 12/2011, 20). These provisions replace the REE 1994, (last published: Supplement to OJ 12/2008, 1), and the REE 1994 Implementing provisions (IPREE 1994, last published: Supplement to OJ 12/2008, 15). The content of the former Instructions (Instructions concerning the qualifications required for enrolment for the EQE, Supplement to OJ 12/2008, 19; Instructions to candidates concerning the conduct of the examination, Supplement to OJ 12/2008, 24; Instructions to candidates for preparing their answers, Supplement to OJ 12/2008, 29; and Instructions to invigilators, Supplement to OJ 12/2008, 35) has been largely incorporated into the IPREE and the current Instructions to candidates concerning the conduct of the EQE (Supplement to OJ 12/2011, 41).

A number of substantive changes were introduced by the REE which entered into force on 1.1.2009 and its IPREE. These include first the creation of a Supervisory Board (Art. 1(6), 2, 3 REE), which is responsible for adopting the IPREE (Art. 3(7) REE), and the introduction of a pre-examination from 2012 (Art. 1(7), 11(7) REE, R. 10 IPREE). Other modifications are: simplification of the enrolment requirements in respect of academic qualifications and professional experience (Art. 11 REE, R. 11 to 15 IPREE); replacement of the rules on modular sitting by the option to take one or more papers at one sitting (Art. 15 REE); extension of the compensation system to all candidates (Art. 14 REE, R. 6 IPREE); streamlining of the appeal procedure (Art. 24 REE).

Under Art. 24 REE (cf. Art. 27 REE 1994), the DBA hears appeals against decisions of the EQE Examination Board and Secretariat.

Appeals against Examination Board and Secretariat decisions which were decided by the DBA under earlier provisions are referred to below if considered still relevant. For more detailed information on the old rules and related DBA decisions, see the 5th edition of the Case Law of the Boards of Appeal.