1.3.2 Boards of Appeal as judicial or quasi-judicial authorities according to national case law

In J 3/95 date: 1997-02-28 (OJ 1997, 493) the Legal Board stated that the status of the Boards of Appeal had been addressed by the High Court of Justice in the United Kingdom (Patents Court) in R. v The Comptroller of Patents, Designs and Trade Marks ex parte Lenzing AG. The High Court held that "the final arbiter of revocation under the new legal system [of the EPC] is to be the Board of Appeal of the EPO". It further stated that "the UK and the other Member States have agreed at an international level via the EPC that the BoA is the final arbiter of oppositions. It is the agreed EPO equivalent of the House of Lords (now, the UK Supreme Court), Cour de Cassation or Bundesgerichtshof... Those who apply for patents in the EPO must accept the results of its findings and its methods of procedure". J 3/95 also acknowledged that the Boards of Appeal constitute a specialised court exercising judicial authority within the meaning of Art. 32 TRIPS (see OJ 1997, 493, point 6.3 of the Reasons; see also this chapter VII.1.3.4.).

In R 1/10 the Enlarged Board affirmed that the Boards of Appeal were set up as required by the rule of law, and in particular affirmed their judicial independence. It pointed out that several high-ranking national courts of EPC contracting states (in particular, the UK's Patents Court and Germany's Federal Court of Justice (Bundesgerichtshof) and Federal Constitutional Court (Bundesverfassungsgericht)) had declared the Boards of Appeal to be independent courts based on the rule of law (see also R 19/12 of 25 April 2014 date: 2014-04-25) and recognised their decisions as those of such a court which they took into consideration when developing their case law.

In ex parte case T 1473/13, the appellant justified its request in support of a stay of proceedings on the basis of a number of constitutional complaints pending before the German Federal Constitutional Court (FCC) (see 2 BvR 2480/10, 2 BvR 421/13, 2 BvR 756/16, 2 BvR 786/15) that were based on an accusation of insufficient judicial relief ("wegen unzureichenden Rechtsschutzes") at the EPO against a decision of the Boards of Appeal. As the board did not see itself in a position to find that the complaints were clearly inadmissible or devoid of any merit, it assessed whether there would be any adverse consequences of refusing a stay of the proceedings.

It initially found that decisions by the Boards of Appeal were, in principle, subject to review by the FCC but that so far there had been no FCC case law according to which an EPO decision had infringed the German Basic Law ("deutsches Grundgesetz").

The board considered that the appellant did not show that non-stay would cause a legal disadvantage for it in case of success of the constitutional complaints. It also noted that, if other boards adopted the same approach, the administration of justice by the boards might become severely hampered. Consequently, the request for a stay was refused. With regard to the functioning of the boards, the board also made reference to examples showing that board of appeal decisions were or are qualified as administrative rulings in jurisdictions other than that of the European Patent Organisation.

In its decision of 8 November 2022, the FCC rejected constitutional complaints 2 BvR 2480/10, 2 BvR 421/13, 2 BvR 756/16, 2 BvR 786/15 and 2 BvR 561/18. The appellants had not sufficiently substantiated that the organisation of the EPO's judicial system failed to provide the required minimum level of effective legal protection. Insofar as they criticised the institutional position of the Technical Boards of Appeal and the Enlarged Board within the European Patent Organisation's system of legal protection and the associated shortcomings with regard to the material and personal independence of their members, it does not appear to be ruled out that these were not guaranteed until the structural reform of 2016. However, these shortcomings had largely been remedied by the structural reform of 2016, which had unbundled the administrative and judicial functions and made the judicial function of the Boards of Appeal largely institutionally independent.