In the
course of 2007 the EPO's boards of appeal registered 2 153 new cases, a 7.5 % increase
on the year before (2006: 2 003), and they settled 1 702 appeals (2006: 1 599). Fig. 1
The technical boards received 2 090 new appeals (2006: 1 967) and settled 1 661
cases (2006: 1 553). At the end of the year, 792 appeals had been pending for
over two years (2006: 734). The number of new PCT protests filed with the
technical boards increased significantly to 41, compared with 29 in 2006, and
41 cases were settled. Fig. 2
Fifteen new appeals were brought before the Legal Board of Appeal (2006: 18),
which settled 21 cases (2006: 26), while the Disciplinary Board received 46 new
appeals (2006: 15) and settled 17 cases (2006: 20).
In 2007
there were two new referrals to the Enlarged Board of Appeal (2006: 3) and three
cases were settled (2006: 0).
In June, the Enlarged Board decided on joined cases G 1/05 and G 1/06
concerning the validity of divisional applications, finding among other things
that a divisional application which at its actual date of filing contains
subject-matter extending beyond the content of the earlier application as filed
can be amended later so that its subject matter no longer extends thus, even at
a time when the earlier application is no longer pending.
This had been preceded by the Enlarged Board's interlocutory decision of
December 2006 in G 1/05, concerning the requirements for the replacement of a
member of the Enlarged Board where a member gave a ground which might
constitute a possible ground for an objection of partiality. The Board also
considered the alleged partiality of a member of the Enlarged Board on the grounds
that a position on the matter had been adopted in a prior decision of a board of
appeal in which the Enlarged Board member concerned had participated.
The referral which was pending under G 3/06 was terminated following withdrawal
of the appeals. Thus there are currently three cases pending before the
Enlarged Board, all of them based on referrals by the boards of appeal. G 2/06
concerns the exclusion from patentability of human embryonic stem cell cultures
prepared by a method which necessarily involves the destruction of the human
embryos from which the cultures are derived. G 1/07 concerns methods for
treatment by surgery and among other things the question of whether a claimed
imaging method for a diagnostic purpose, which comprises or encompasses a step
consisting in a physical intervention practised on the human or animal body, is
to be excluded from patent protection as a method for treatment of the human or
animal body by surgery pursuant to Article 52(4) EPC if that step does not per
se aim at maintaining life and health. Finally, G 2/07 relates to a
non-microbiological process for the production of plants which contains the
steps of crossing and selecting plants, the question being whether such a
process escapes the exclusion of Article 53 (b) EPC merely because it contains
an additional feature of a technical nature as a further step or as part of any
of the steps of crossing and selection.
