2.3.2 Systematic interpretation

According to the Enlarged Board in G 2/12, systematic interpretation forms a second pillar when construing a legal provision and its terms (see G 1/88, point 3 of the Reasons; G 9/92 date: 1994-07-14, OJ 1994, 875, point 1 of the Reasons; G 4/95, OJ 1996, 412, 421 et seq., points 4 and 5 of the Reasons; G 3/98, point 2.2 of the Reasons; G 4/98, OJ 2001, 131, 143, point 4 of the Reasons). In applying this second method of interpretation the meaning of the wording in question was to be established in the context of the relevant provision itself. In addition, the provision as such had to be interpreted taking into account its position and function within a coherent group of related legal norms (see also G 1/18, point IV.2, which endorsed and followed this approach).

In J 7/21, the Legal Board decided that R. 22 EPC did not apply to cases of universal succession. According to the Legal Board, in the context of a systematic interpretation, the meaning of "transfer" in the provisions of R. 22 EPC had to be established, taking into account its position within a coherent group of related legal norms. R. 22 EPC implemented Art. 71 and 72 EPC, relating to patent applications as objects of property. Art. 71 and 72 EPC referred only to transfers of title by contract. No other possibility was dealt with in the EPC, and some of the formal requirements set out in Art. 72 EPC could not be met in the case of universal succession following the death of a natural person. Moreover, R. 143(1)(w) EPC stated that the European Patent Register must contain entries concerning the rights and the transfer of such rights relating to an application or a European patent where the Implementing Regulations provide that they are to be recorded. Hence, it could be inferred from that provision that not all kinds of transfers of rights needed to be registered, but only those explicitly mentioned in the Implementing Regulations.

In T 695/18, where the issue was the applicability of R. 139 EPC, the board observed that remedies with the rare capacity to revive EPO proceedings, either in full (e.g. re-establishment of rights), or in part (e.g. petition for review) were only available upon payment of the prescribed fee (Art. 112a EPC and Art. 122 EPC; R. 104 to 110 EPC and R. 136 EPC). In stark contrast to this was the absence of a fee requirement in R. 139 EPC. Moreover, and more importantly, these extraordinary remedies endowed with resurrection powers were subject to clear and codified time limits and other precisely limited circumstances and conditions that ensure legal certainty for all stakeholders. Conversely, R. 139 EPC was merely a stand-alone provision ranked as an implementing regulation of the EPC. Legal certainty, as protected by the safeguards expressed in, or derived from the articles of the EPC governing re-establishment of rights and petition for review, corresponded, also from a systematic point of view, to a higher interest. It took precedence over the subordinate value of R. 139 EPC and its role relating to the "true" as opposed to the "ostensible" party intention. The board also found it convincing that in the early jurisprudence of the boards of appeal, it was found that the placing of R. 139 EPC (then R. 88 EPC 1973) only in the Implementing Regulations raised the presumption that it was a merely ancillary provision which could only be applied while proceedings were pending for some other purpose before the EPO, and that this Rule did not confer original jurisdiction on the EPO to make corrections at any time (see J 42/92, point 4 of the Reasons).