2.3.8 Point of law of fundamental importance

The requirement that the referred question must either concern a lack of uniform application of the law by the boards or a point of law of fundamental importance concerns both referrals by a board and referrals by the President (see in this chapter V.B.2.4.1).

G 1/12 (OJ 2014, A114) concerned the correction of errors regarding the identity of the appellant and, in this context, the admissibility of an appeal. The Enlarged Board held that the referred question related to a "point of law of fundamental importance" because it was relevant to a large number of similar cases (see also G 2/21, OJ 2023, A85; G 1/24, OJ 2025, A60; T 271/85 date: 1988-03-09, OJ 1988, 341; T 1242/04, OJ 2007, 421 and T 1676/08: "a substantial number of similar cases") and was therefore of great interest not only to the parties to the specific appeal proceedings in question (see also T 590/18 of 4 July 2018 date: 2018-07-04). Settling this point of law was important not only to the users of the European patent system but also to the boards of appeal and the department of first instance in examination and opposition proceedings. A minority of the members of the Enlarged Board disagreed and considered the referral inadmissible. According to the minority, the majority's view implied that "importance" within the meaning of Art. 112 EPC was nothing more than mere relevance. The number of cases affected, however, was neither a suitable nor an appropriate criterion for establishing the admissibility of a referral. In G 1/13 (OJ 2015, A42) and G 2/21 (OJ 2023, A85), the Enlarged Board confirmed the view of the majority in G 1/12.

In G 1/19 the Enlarged Board held that the requirement of fundamental importance was fulfilled despite the small number of board decisions in the field of the application in suit. It added that in an unknown number of cases, the issues at play in the underlying appeal had been avoided through claim drafting techniques; the referred questions could also be pertinent for these cases.

In consolidated cases G 1/22 and G 2/22 (OJ 2024, A50) the Enlarged Board found that while question II referred to a specific situation, the answer would not necessarily be limited to the viability of the "PCT joint applicants approach" and may cover other situations where the applicant's entitlement to the priority right was challenged. It added that even if the answer covered only the situation described in question II, the question was considered to touch a point of law of fundamental importance in the terms of Art. 112(1) EPC.

Referring to G 1/84, G 3/93, G 2/04 and G 3/04, the board in T 1286/23 found that party status, whether before the first-instance divisions or in appeal proceedings, was normally a fundamental question of law. In G 2/24 (OJ 2026, A24) the referral focused on the question whether, after withdrawal of all appeals, the proceedings may be continued with a third party who had intervened during the appeal proceedings and whether this party may acquire an appellant status. The Enlarged Board found that the referred questions concerned an aspect of fundamental importance with regard to the determination of a third party's legal status and associated rights in proceedings before the boards of appeal.

In G 4/19 the Enlarged Board noted that a point of law could be of fundamental importance even where there was no divergence in the case law (see also T 1286/23).

In T 26/88 (OJ 1991, 30) the board held that a question was not sufficiently important when the legal framework upon which the question was based (here: R. 58(5) EPC 1973) had changed in the interim and the question was therefore unlikely to arise again very often (see also T 1286/23). Similarly, in T 2459/12, the board stated that a question regarding a point of law the answer to which would affect only a relatively small number of applicants for a limited period of time, after which it would become obsolete (here: due to an amendment to R. 164 EPC), was not a question relating to a point of law of fundamental importance.

In T 364/20 the board noted that the question concerning university theses to be made available to the public in view of legal provisions or university regulations in Finland was highly specific so that no point of law of fundamental importance arose. Similarly in T 423/22 the board considered the circumstances of the witness hearing defined in the question to be very specific (hearing by videoconference, witness is an employee of the opponent and located at the opponent's office during the hearing) and hence not applicable to the majority of witness hearings during first-instance proceedings. According to the board the question was not of fundamental importance.

The lack of case law on a particular issue is in itself not a sufficient reason to refer a question to the Enlarged Board (T 998/99).

In J 5/81 (OJ 1982, 155) the appellant requested the referral of a question which the Legal Board considered an important point of law. The Legal Board refused the appellant's request regardless, as the question could be answered by reference to the EPC without doubt (see also, for example, J 14/91, OJ 1993, 479; T 1196/08; T 1676/08; T 2477/12). In T 39/05, the board already denied the existence of an important point of law if a question could be answered by reference to the EPC without doubt.

In J 10/15 the Legal Board was of the opinion that the legal situation in the case in hand was clearly to be derived from the EPC and the PCT, so that there was no question of law of fundamental importance which could justify a referral to the Enlarged Board.