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Case Law of the Boards of Appeal

 
 
1.1. A specialised court exercising judicial authority

In G 1/97 (OJ 2000, 322) the Enlarged Board of Appeal noted that boards of appeal may be seen as having the status of judicial authorities, since they embody all the features of such an authority: in their decisions, the members of the boards are not bound by any instructions and are obliged to comply only with the provisions of the EPC (Art. 23(3) EPC 1973); they are appointed for a fixed term, during which they may not be removed from office except if there are serious grounds for so doing (Art. 23(1) EPC 1973); the EPC contains provisions for safeguarding the impartiality of board members (Art. 24 EPC 1973); the boards always include at least one legally qualified member (Art. 21 EPC 1973); they have their own rules of procedure; and finally, they issue written decisions containing a statement of reasons (R. 66(2) EPC). Regarding the judicial nature of the boards of appeal, reference was also made to the House of Lords' decision of 26 October 1995 in Merrel Dow v. Norton, [1996] R.P.C. 76, and to the decision of the United Kingdom High Court of Justice dated 20 December 1996, in the case of Lenzing AG's European Patent (UK), [1997] R.P.C., 245). Even if the status of a judicial authority were to be contested, it would be clear that, in the light of the foregoing, the boards of appeal constitute at least a quasi-judicial authority as referred to in Art. 62(5) TRIPs.