4.5. Article 112a(2)(e) EPC – criminal act having an impact on a decision

Under Art. 112a(2)(e) EPC, a petition for review may be based on the ground that a criminal act may have had an impact on a decision. A competent court or authority must have finally established that the criminal act occurred; a conviction is not necessary (R. 105 EPC). Deviating from the general rule, the time limit for filing the petition is two months after the criminal act has been established, and in any event not later than five years after notification of the decision (Art. 112a(4) EPC).

In R 2/10 the petitioner referred to alleged criminal acts which had, however, not been established by a criminal court or authority. The Enlarged Board rejected the petition as clearly inadmissible, due to failure to observe the time limit for filing the petition.

In R 3/21 the Enlarged Board stated that it was not empowered to act in the capacity of a criminal court or other prosecuting authority and establish criminal acts within the meaning of Art. 112a(2)(e) EPC, be it in relation to members of an examining division or board, the President of the Boards of Appeal or any other person. It also pointed out that, in its composition under R. 109(2)(a) EPC as an independent judicial body for patent grant proceedings, it had no formal supervisory duty to investigate alleged criminal offences or to transmit any criminal complaints to criminal authorities, whether on request or of its own motion.