2.3.7 Ensuring uniform application of the law

In order to be admissible, the referred question must either concern a non-uniform application of the law by the boards or, alternatively, a point of law of fundamental importance (see in this chapter V.B.2.3.8). According to Art. 112 EPC, this requirement concerns not only referrals by a board but also referrals by the President, which, however, must in any case concern "different decisions" of the boards (see in this chapter V.B.2.4.3).

In T 154/04 (OJ 2008, 46) the board found that deviating from an opinion given in another decision of a board of appeal or a deviation from national jurisprudence are not per se valid reasons for referral under Art. 112(1)(a) EPC (see also T 314/20). According to the board, the legal system of the EPC allows for the evolution of the case law, which is not case law in the Anglo-Saxon meaning of the term. In T 15/01 (OJ 2006, 153) the board did not consider a referral to the Enlarged Board necessary, because only one previous decision of the boards deviated from its own conclusion as to the exhaustion of priority rights. In T 248/88 the board also held that a single and isolated non-uniform decision did not qualify under Art. 112(1)(a) EPC. Similarly, the board in T 745/23 did not consider a referral to the Enlarged Board necessary, arguing inter alia that only a few decisions had taken a different approach to the majority of the jurisprudence. According to the board in T 314/20 a referral would only be appropriate if two or more conflicting lines of interpretation existed, which would lead, in the case in hand, to diverging outcomes.

In T 438/22 the board admitted that the wording of Art. 112(1)(a) EPC may appear to suggest that the removal of a discrepancy between the Guidelines and the case law could also be understood as "ensuring uniform application of the law" and as such be a good reason for an admissible referral. However, the board held that a referral whose sole purpose was to correct the Guidelines and which was not necessary either for ensuring a uniform case law within the boards or for the board's decision was inadmissible. See also in this chapter V.B.2.3.1.

In T 712/10 the board stated that the Enlarged Board does not have the power to ensure uniform application of the law between the boards of appeal and national courts. However, a lack of uniformity between the law as applied by the boards of appeal and national courts could, in theory, bring to the fore a point of law of fundamental importance.

With regard to T 712/10 the board in T 447/22 remarked that, although a lack of uniformity between the law as applied by the boards of appeal and national courts could, in theory, bring to the fore a point of law of fundamental importance, the purpose of referring a question to the Enlarged Board could not be to ensure uniform application of the law between national courts.

In T 2477/12 the board held that the application of the same legal principles and criteria may lead to different results in different cases. This is a consequence of the specific facts of each individual case and not, however, an indication of a contradictory interpretation or an inconsistent application of the law. See also T 314/20 and T 364/20.

In G 1/12 (OJ 2014, A114), the Enlarged Board considered the requirement of non-uniform application of the law to be fulfilled because some decisions allowed deficiencies in the appellant's name to be remedied under R. 101(2) EPC, whereas in other decisions on analogous situations the boards applied R. 139 EPC. A minority of the members of the Enlarged Board were of the opinion that this merely demonstrated that, as long as the removal of the deficiency did not lead to a change of the appellant's true identity, both procedures were available according to consistent case law.

In G 2/21 (OJ 2023, A85) the Enlarged Board accepted the referring board's perception of divergencies in the case law, if only for the use of different conceptual and terminological approaches underlying the referred questions. According to the Enlarged Board, confronted with these approaches, the referring board considered itself unable to arrive at a clear conclusion for the case at hand.

In consolidated cases G 1/22 and G 2/22 (OJ 2024, A50) the Enlarged Board considered the condition that an answer to referred question I was required to ensure uniform application of the law met. The Enlarged Board reasoned that the EPO's jurisdiction concerning the entitlement to the priority right had been questioned by boards of appeal in several cases and was arising in various other cases before different boards.

In G 1/24 (OJ 2025, A60) the referring decision identified diverging lines of case law. The Enlarged Board confirmed that its decision would serve to bring about a uniform application of the law.