5.7.3Stages of the procedure before the boards of appeal 

5.7.008The boards of appeal of the EPO decide on appeals as a judicial and final instance. The members of the boards are independent in their decision-making and bound to comply with the EPC. The Rules of Procedure of the Boards of Appeal are published in the Official Journal and on the EPO website. 

The technical boards of appeal are responsible for appeals against decisions of the examining divisions concerning the refusal of European patent applications or the granting of European patents and for appeals against decisions of the opposition divisions. 

The technical boards normally consist of three members (two technically qualified and one legally qualified). This is increased to five (three technically qualified and two legally qualified) if a legally qualified member was involved in taking the decision or if the board considers that the nature of the appeal so requires (enlarged composition). 

Where the technical boards of appeal are not competent – particularly in the case of appeals against decisions of the Receiving Section or the Legal Division – a legal board of appeal consisting of three legally qualified members deals with such procedures. 

5.7.009To ensure uniform application of the law or if an important point of law arises, referrals may be submitted to the Enlarged Board of Appeal. During proceedings on a case and either of its own motion or following a request from a party, a board of appeal may refer any question to the Enlarged Board if it considers that a decision is required for the above purposes. The Enlarged Board's decision is binding on the referring board. The President of the EPO may refer a point of law to the Enlarged Board if two boards of appeal have given different decisions on the issue. 

5.7.010The provisions relating to proceedings before the department which took the appealed decision are essentially applicable mutatis mutandis to appeal proceedings and proceedings for petition for review. In the examination of the appeal, the board of appeal invites the parties to file, within a specified period, observations on communications issued by itself or observations submitted by another party.

Oral proceedings may be held at the request of a party or at the instance of the board of appeal. 

5.7.011In deciding on the appeal, the board may either exercise any power within the competence of the department which took the appealed decision or remit the case to that department for further prosecution. In the latter case, the department is bound by the board's decision, in so far as the facts are the same.