1.2. An independent judiciary within the European patent system

In J 3/95 (OJ 1997, 493) the Legal Board of Appeal stated that the status of the boards of appeal was also recently addressed by the High Court of Justice in the United Kingdom (Patents Court) in R. v The Comptroller of Patents, Designs and Trade Marks ex parte Lenzing AG. The High Court held that "the final arbiter of revocation under the new legal system [of the EPC] is to be the Board of Appeal of the EPO", and that "the UK and the other Member States have agreed at an international level via the EPC that the BoA is the final arbiter of oppositions. It is the agreed EPO equivalent of the House of Lords, Cour de Cassation or Bundesgerichtshof... Those who apply for patents in the EPO must accept the results of its findings and its methods of procedure". This decision also acknowledged that the EPO boards of appeal constitute a specialised court exercising judicial authority within the meaning of Art. 32 TRIPs.

In R 1/10 the Enlarged Board of Appeal stated that, based on the principles of the separation of powers, the legality of all state action and respect for human rights, which were constitutive of any system governed by the rule of law, it could not accept the concerns raised by the petitioners as to whether the EPO boards of appeal were set up as required by the rule of law, in particular in terms of their judicial independence. Contrary to the view expressed by the petitioners. Several high-ranking national courts of EPC contracting states had in the past declared the boards of appeal to be independent courts based on the rule of law and recognised their decisions as those of such a court which they took into consideration when developing their case law. In its opinion G 3/08 (OJ 2011, 10), the Enlarged Board had also set out why, under the EPC, the boards of appeal were an independent judiciary within the European patent system based on the principle of the separation of powers.

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