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Case Law of the Boards of Appeal

 
 
1.3. The requirement for the judicial review of decisions

Art. 32 TRIPs requires member countries to provide an opportunity for judicial review of any decision to revoke or forfeit a patent. In the context of the usual structure of judicial review in the contracting states of the EPC and the EPC itself, this provision guarantees an instance for judicial review in revocation proceedings.

In T 557/94 the board discussed the TRIPs requirement for the judicial review of decisions revoking a patent. While recognising that the European Patent Organisation was not a party to TRIPs the board investigated whether the basic principle of judicial review under Art. 32 TRIPs was satisfied by the EPC 1973. It found that in any case, under Art. 111(1), second sentence, EPC 1973, the board of appeal was empowered either to decide on the merits of the case or to remit the case; it was not restricted to the latter alternative if the opposition division maintained the patent and the board was considering revoking the patent for the first time. Reading Art. 32 TRIPs in the context of the usual structure of judicial review in the EPC contracting states and the EPC 1973 itself, this provision guaranteed an instance for judicial review in revocation proceedings, but did not oblige the reviewing instance to remit the case to the department of first instance for continuation of proceedings when revocation was being considered by the judicial instance for the first time.