1.1. The institutional structure of the European Patent Organisation

In G 3/08 date: 2010-05-12 (OJ 2011, 10) the Enlarged Board held that the European Patent Organisation is an international, intergovernmental organisation, based on the separation of powers principle, which the sovereign contracting states have entrusted with the exercise of some of their national powers in the field of patents. The EPC assigns executive power to the Office to grant patents and to its President to manage the Office in organisational respects (Art. 4(3) and 10 EPC, see also G 5/88 (OJ 1991, 137), while to the Administrative Council it assigns limited legislative powers restricted to lower-ranking rules (Art. 33 EPC), along with financial and supervisory powers. The boards of appeal, which in their decisions are bound only by the EPC (Art. 23(3) EPC), are assigned the role of an independent judiciary in this patent system (Art. 21 to 23 EPC; see also G 6/95, OJ 1996, 649, points 2 et seq. of the Reasons), even if they are not an independent organ of the European Patent Organisation (Art. 4(2) EPC) but departments of the Office (Art. 15 EPC; see also R 19/12 of 25 April 2014 date: 2014-04-25 and R 2/14 of 17 February 2015 date: 2015-02-17). The Enlarged Board further stated that the boards of appeal of the EPO, like the judiciary of any democratic entity based on the separation of powers principle, guarantee the due process of law within the European Patent Organisation. They are also assigned interpretative supremacy with regard to the EPC in terms of its scope of application (see Art. 23(3) EPC). Under Art. 21(1) EPC they are responsible for reviewing decisions taken by the Office in grant and opposition proceedings. Their interpretation of the EPC is the basis for the practice established by the Office for the examination of patent applications and oppositions to granted patents.

At the 148th meeting of the Administrative Council of the European Patent Organisation (Munich, 29 and 30 June 2016), the Council approved the reform of the Boards of Appeal, see CA/43/16 rev. 1 of 30 June 2016 (Reform of the Boards of Appeal); CA/D 6/16 of 30 June 2016, OJ 2016, A100 (Decision of the Administrative Council of 30 June 2016 amending the Implementing Regulations to the European Patent Convention); CA/D 7/16 of 30 June 2016, OJ 2016, A101 (Decision of the Administrative Council setting up a Boards of Appeal Committee and adopting its Regulations). The aims of the reform were to strengthen the Boards of Appeal’s organisational and managerial autonomy, and to increase their perceived independence and efficiency. There was no need to revise the EPC. Since entry into force of the reform, the Boards of Appeal and the Enlarged Board, including their registries and support services, have been organised as a separate unit and directed by the President of the Boards of Appeal.

The delegation of functions and powers from the President of the Office to the President of the Boards of Appeal is published in the Official Journal (OJ 2018, A63).