1. Guidelines not binding on boards

The Guidelines for Examination are not binding on the boards of appeal.

In T 1561/05 the board confirmed that the Guidelines were not binding on the boards of appeal (applying T 162/82, OJ 1987, 533). T 1561/05 of 17 October 2006 date: -2006-10-17 is also referred to in J 7/10.

In T 740/98 the board noted, among other things, that the legal system established under the EPC did not treat the Guidelines as binding.

In T 1063/06 (OJ 2009, 516), the board held that the appellant could not successfully rely on the Guidelines to support its right to a functional definition of chemical compounds before the boards. It could be left open whether or not the appellant's contentions with respect to the Guidelines' content were correct, because the Guidelines were issued by the President of the EPO and had no normative binding effect on the boards of appeal (with reference to T 162/82 and Art. 23(3) EPC).

In T 1356/05 the board stated that no provision of the Guidelines could override an article or rule of the EPC (see also T 1360/05, and T 861/02, in which the board, while noting the advice in the Guidelines on decisions consisting of references to communications, stated that R. 68(2) EPC 1973 (R. 111 EPC) must always be complied with).

In T 500/00 the appellant argued that the disclaimer had been made in good faith according to the Guidelines and in accordance with the practice of the boards of appeal at the time of making the disclaimer. The board pointed out that the Guidelines were not rules of law and noted that what counted was not whether the opposition division had acted in accordance with the Guidelines, but whether it had acted in accordance with the EPC.

As to the alleged lack of consistency between what was in fact the established case law and the Guidelines, the board in T 1741/08 noted that it was not bound by the Guidelines, an important factor in the judicial independence of the boards of appeal (Art. 23(3) EPC). An alleged divergence between the Guidelines and case law therefore could not be a sufficient basis for challenging the case law by means of a referral to the Enlarged Board. Decision T 438/22 also stated that a referral to the Enlarged Board whose sole purpose was to correct the Guidelines and which was not necessary either for ensuring uniform case law within the boards or for the board's decision was not admissible. Such a referral could be perceived as an attempt to encroach on the President's powers under Art. 10(2)(a) EPC (Catchword and point 8.2.2 of the Reasons).

In T 1363/12 the board stated that it is to be noted that the principles established by the Enlarged Board for the assessment of the requirement of Art. 123(2) EPC could not be changed by issuing amended Guidelines.

In ex parte case T 1090/12, the appellant drew the attention to the Guidelines G‑VII, 3.1 – November 2016 ("an assertion that something is common general knowledge need only be backed by documentary evidence (for example, a textbook) if this is contested") and submitted that this passage was binding on the boards of appeal when exercising the power of the examining division. The appellant requested the referral of the following question to the Enlarged Board: "To what extent is a Board of Appeal, when exercising power within the competence of the first-instance department which was responsible for the decision appealed under Art. 111(1) EPC, subject to the same constraints on that power as the first-instance department, such as the duty to follow the Guidelines?". The board refused this request and stated that the Guidelines are not part of the EPC (see Art. 164(1) EPC 1973) and therefore cannot be binding upon the members of the boards of appeal (see Art. 23(3) EPC 1973).

In T 246/22, on the question what was meant by "admissibly raised" (Art. 12(4) RPBA) before the opposition division, the board said that one viable approach would see a board slip into the shoes of the opposition division. That board would then have to infer, from its perspective, how the opposition division should have exercised its discretion on the basis of the applicable procedural basis, e.g. in view of the current Guidelines. However, one of the possible consequences of that approach could arguably be that the boards would have to closely monitor the currently applicable Guidelines to derive guidance as to how the opposition division concerned should have exercised discretion. Another reason this approach failed to convince the board was that the Guidelines are not binding on the boards and the RPBA are approved and adopted specifically to govern the proceedings before the boards. The board proposed another approach (See also for an assessment made independently of the Guidelines: T 1135/22, T 506/23). Compare further on the topic interpretation of "admissibly raised" based on the applicable Guidelines with: T 364/20, T 1800/20, T 446/22, T 731/22, T 924/22, T 1178/23.

The board in T 364/20 (request admissibly raised and maintained) deviated from the Guidelines E‑VI, 2.1 and E‑VI, 2.2.2 ‒ 2023 version.

The fact that the Guidelines are not binding on the boards of appeal does not mean that the boards do not apply them or quote them as a source of inspiration (see in this chapter III.W.3.).