1.2. Rules of Procedure of the Boards of Appeal

The RPBA have their legal basis in Art. 23(4) EPC in conjunction with R. 12c(2) EPC (on this, see also T 700/15). They were comprehensively revised in 2019 and the new version came into force on 1 January 2020 (for details on this, see Supplementary publication 2, OJ 2020; for subsequent amendments see OJ 2021, A35 and OJ 2024, A15). The aims of the revision of the RPBA were: (i) to increase efficiency by reducing the number of issues (questions) to be dealt with, (ii) to improve predictability for the parties and (iii) to promote harmonisation.

The amendments to the RPBA can be divided into two categories. Firstly, improvements have been made as regards the management of the boards' overall caseload and of individual cases. Secondly, changes have been made to clarify that the primary object of appeal proceedings is to review the decision under appeal in a judicial manner (Art. 12(2) RPBA).

The boards of appeal are the first and final judicial instance in the procedures before the EPO. In this capacity, they review appealed decisions on points of law and fact. One of the consequences of their function being above all to review appealed decisions is that, as the appeal proceedings progress, the possibilities for parties to amend their case become increasingly limited.

The last time major changes had been made to the RPBA was in 2003. These related to the "core" of the appeal procedure, i.e. written and oral proceedings and various related aspects, such as late filing and costs (for details, see CA/133/02). In 2007 they were revised again, to reflect the EPC 2000 (OJ 2007, 536); the provisions on written and oral proceedings were largely left unchanged, but renumbered.

Under Art. 23 RPBA, which was left unchanged from the previous version, the RPBA are binding on the boards unless they lead to a situation which would be incompatible with the spirit and purpose of the EPC (on this, see T 2227/12).

In T 2154/15 the board stated that the RPBA constitute second-degree subsidiary law and thus could not remove powers attributed to the boards by an article of the EPC.

Further details on the RPBA can be found in particular in chapters V.A.9. "Remittal to the department of first instance", V.A.4. "New submissions on appeal", and III.C. "Oral proceedings".