8.2. National decisions: no binding effect on the boards of appeal

According to the board in T 452/91, in proceedings before the EPO, questions of patentability were to be decided solely in accordance with the EPC. No national decision should be cited as if it were binding on the EPO, and claims should not be refused by the EPO on the ground that their "patentability cannot be upheld under the jurisdiction of one member state". It could be that the law in most or all other contracting states was different. The reasoning that led the national instance to its conclusion might well lead an EPO instance to a similar conclusion under the EPC, but this would first need a careful assessment of the EPC, and of relevant EPO board of appeal case law, a comparison with the legislation and jurisprudence on which the national instance reached its conclusion, and a study of the position in other contracting states. See also R 21/09, T 1753/06.

In T 154/04 (OJ 2008, 46) the board stated that in proceedings before the EPO, the consideration of decisions and opinions given by national courts does not exonerate a board of appeal from its duty as an independent judicial body to interpret and apply the EPC and to decide in the last instance in patent granting matters. In addition, despite harmonised legal regulations, it is not self-evident that their interpretation is also harmonised among different national courts, let alone courts of different contracting states, so that the boards of appeal would be at a loss as to which interpretation to follow if they did not exercise their own independent judgment.