2.5.1 Question already decided by the Enlarged Board

Should a board consider it necessary to deviate from an earlier opinion or decision of the Enlarged Board, the question must be referred to the Enlarged Board (Art. 21 RPBA).

In T 297/88 the board examined under which circumstances it was possible to re-refer a question which had already been decided by the Enlarged Board. It took the view that a board may only refer the same point of law another time to the Enlarged Board if the Enlarged Board's arguments were so weak that doubts as to the correctness of the decision were unavoidable. This was also the case where the arguments were based on a false premise so that there were doubts about the conclusion drawn. Finally, a decision of the Enlarged Board could also be questioned where the premise was correct, the arguments were conclusive and the conclusion therefore also correct, but where legal or technical developments occurring in the interim made it desirable in the public interest to have the question reviewed again by the Enlarged Board.

In G 2/24 (OJ 2026, A24) the Enlarged Board held that a board of appeal intending to deviate from an earlier opinion or decision of the Enlarged Board was expected to substantiate why it considered the earlier ruling on the interpretation of the law to have been superseded by a subsequent change in the law or for potential gaps in its reasoning. Furthermore, a board of appeal could also refer a question that had previously been answered by the Enlarged Board if it was confronted with a new factual or procedural situation that distinguished it substantially from the situation underlying the earlier referral. See also in this chapter V.B.2.3.2.

In T 82/93 (OJ 1996, 274; see also T 80/05, T 1213/05) the board rejected the requested referral because the question had already been decided by the Enlarged Board. In T 423/22 the board pointed out that it did not consider a decision of the Enlarged Board to be required since it did not intend to deviate from an earlier decision of the Enlarged Board (see also T 745/23).

In T 1063/18 the board decided that R. 28(2) EPC was in conflict with Art. 53(b) EPC as interpreted by the Enlarged Board in G 2/12 and G 2/13 and saw no reason to deviate from the Enlarged Board's interpretation of Art. 53(b) EPC. Furthermore, the board stated that no point of law arises in relation to the course of action in case of a conflict between a rule of the Implementing Regulations and an article of the EPC because this situation is governed by Art. 164(2) EPC. For these reasons the board decided a referral under Art. 112(1)(a) EPC was not justified.

In G 9/93 (OJ 1994, 891), the Enlarged Board confirmed the referring board's view that the concept of opposition proceedings set out in G 1/84 differed fundamentally from that in G 9/91 and G 10/91, which it endorsed.