Decision of the German Federal Constitutional Court on complaints against Boards of Appeal decisions

The German Federal Constitutional Court today published its decision on several constitutional complaints (2 BvR 2480/10, 2 BvR 421/13, 2 BvR 786/15, 2 BvR 756/16 and 2 BvR 561/18) which concerned an alleged lack of legal protection and an alleged violation of procedural rights in proceedings before technical Boards of Appeal and the Enlarged Board of Appeal. The Federal Constitutional Court held the constitutional complaints inadmissible.

The Federal Constitutional Court stated that decisions of the EPO Boards of Appeal could not be directly contested through constitutional complaints. It also addressed the duty of the German constitutional organs to ensure within their competences that the level of effective legal protection required by German constitutional law was respected in the European Patent Organisation. The Court held that it had not been substantiated that the legal protection system of the European Patent Organisation did not comply with the required level of protection. In this context, the Court stressed the improved institutional separation of administrative and judicial functions which was achieved by the structural reform of the Boards of Appeal in 2016. This reform involved in particular the creation of the function of President of the Boards of Appeal, responsible solely to the Administrative Council, and a delegation of powers from the President of the EPO to the President of the Boards of Appeal.

The decision of the Federal Constitutional Court is available on the court's website in German, and the Court's press release in both German and English.

EPO news item in English, German and French.


Nikolaus Obrovski
Jeannine Hoppe
Spokespersons of the Boards of Appeal of the European Patent Office