The boards of appeal are located at the European Patent Office's headquarters in Munich, Germany. They consist of an Enlarged Board of Appeal, a Legal Board of Appeal and 27 technical boards of appeal.
Together with their associated administrative services, the boards of appeal are integrated into the organisational structure of the European Patent Office as Directorate-General 3. They are, however, independent from the Office in their decisions and are bound only by the European Patent Convention.
The members of the boards are bound only by the European Patent Convention, which governs European patent practice at the European Patent Office. According to the Convention, in their decisions the members of the boards are not bound by any other instructions whatsoever, either from the President of the Office or from the national authorities or from any other party. The status of the members of the boards is comparable to that of a judge at a second-instance national court.
Members and chairmen of the boards of appeal are appointed by the European Patent Organisation’s Administrative Council for a renewable term of five years.
Technical boards are usually composed of two members from the relevant technical field as well as one legal member. The Legal Board of Appeal is composed of three legal members.
Vacancies are advertised within the European Patent Office (EPO) and externally.
Based on the results of the selection procedure, a committee establishes a shortlist of suitable candidates for the President of the Office, who in turn proposes a candidate to the European Patent Organisation's Administrative Council, which either accepts or rejects the candidate in accordance with the provisions laid down in the European Patent Convention.
The technical boards of appeal and the Legal Board deal with appeals filed in relation to decisions reached by the first instance in the patent grant procedure, that is the Receiving Section and the Examining, Legal and Opposition Divisions.
They decide on questions relating to the granting of and opposition to European patents under the European Patent Convention, but not on questions of patent infringement.
The Legal Board of Appeal deals mainly with appeals by parties adversely affected by decisions of the Receiving Section and the Legal Division.
The technical boards may order that an opposed patent be maintained in its entirety or in part only, or that it be revoked.
The Enlarged Board of Appeal deals with cases referred to it either by one of the technical boards of appeal or by the Legal Board of Appeal or by the President of the European Patent Office for a decision on an important point of law or in order to secure uniform application of the law. The President may refer a point of law in cases where two boards of appeal have given different decisions on the same question. In referral cases the Enlarged Board of Appeal is composed of five legal members and two technical members.
Since the entry into force of the revised European Patent Convention in December 2007, the Enlarged Board of Appeal also reviews decisions of the boards of appeal upon petition of a party. Petitions may only be based on a fundamental procedural defect or on a criminal act that may have had an impact on the decision of the board of appeal.
Appeals may be filed by adversely affected parties, for example (and in the main) when the Examining Division refuses a patent application or when the Opposition Division revokes or maintains a patent in part or in its entirety following an opposition procedure. Such cases are then referred to a technical board of appeal in the relevant technical field, whose members review the decision reached by the examining division or opposition division. The case law that results from the decisions of the boards plays a major role in the development of the European Patent Office's patenting practice.
Note: Oppositions are first-instance legal remedies against granted European patents. Anyone is free to contest a patent grant by filing an opposition within a period of nine months after the publication of the mention of the grant in the European Patent Bulletin. This then initiates a formal review process during which the patent is reconsidered in the light of the objections made by the opponent(s). The ruling of the Opposition Division can then be appealed.
The boards of appeal currently receive about 2 500 new cases per year and settle about 1 950 cases. The average processing time - from the filing of the appeal to the issuing of the reasons for the decision - currently stands at 25 months.
The Enlarged Board of Appeal deals with two to three referrals and around twenty review cases per year.
The fee is currently EUR 1 180 for all appeals, irrespective of the technical field and/or complexity of the case.
The decisions of the boards of appeal are final at European level. If, however, a patent is upheld at the end of the appeal procedure, a competitor may institute national nullity proceedings in a particular member state if, for example, he wants the patent to be invalidated in that country. If the patent in question is revoked by the technical board of appeal, there is no further legal remedy at national level. It is not possible to involve the European Court of Justice, because the legal systems of the European Patent Office - in other words the European Patent Convention - and the EU are not connected with each other.
The initiative has resulted in what is a complete draft for revision of the European Patent Convention, with the goal of organisationally separating the boards of appeal from the European Patent Office. However, in order to implement the initiative, a Diplomatic Conference attended by the representatives of the member states of the European Patent Organisation will be necessary. The boards of appeal, together with their associated administrative services, would then no longer be integrated into the European Patent Office as Directorate-General 3 but would become a separate body within the European Patent Organisation.