ADMINISTRATIVE COUNCIL
Decisions of the Administrative Council
Decision of the Administrative Council of 10 December 1982 approving the Rules of Procedure of the Enlarged Board of Appeal1
THE ADMINISTRATIVE COUNCIL OF THE EUROPEAN PATENT ORGANISATION
Having regard to the European Patent Convention, and in particular Article 23, paragraph 4, thereof.
Having regard to the Rules of Procedure of the Enlarged Board of Appeal, adopted on 10 December 1982 pursuant to Rule 11 of the Implementing Regulations to the Convention,
HAS DECIDED AS FOLLOWS:
Article 1
The Rules of Procedure of the Enlarged Board of Appeal as annexed hereto are hereby approved.
Article 2
This Decision shall enter into force on 10 December 1982.
Done at Munich, 10 December 1982
For the Administrative Council
The Chairman
I J. G. DAVIS
RULES OF PROCEDURE OF THE ENLARGED BOARD OF APPEAL
The Enlarged Board of Appeal hereby adopts, under Rule 11 of the Implementing Regulations to the European Patent Convention, the following Rules of Procedure:
Article 1
Business distribution scheme
(1) Before the beginning of each working year the authority referred to in Rule 10, paragraph 2, shall draw up a business distribution scheme for all points of law that shall be referred during the year. The scheme may be amended during the working year.
(2) In proceedings before the Enlarged Board of Appeal at least four of the members shall not have taken part in the proceedings before the Board of Appeal referring the point of law.
Article 2
Replacement of members
(1) Reasons for replacement by alternates shall in particular include sickness, excessive workload, and commitments which cannot be avoided.
(2) Any member who wishes to be replaced by an alternate shall inform the Chairman of the Board of his unavailability without delay.
Article 3
Exclusion and objection
(1) If the Board has knowledge of a possible reason for exclusion or objection which does not originate from a member himself or from any party to the proceedings, then the procedure of Article 24, paragraph 4, of the Convention shall be applied.
(2) The member concerned shall be invited to present his comments as to whether there is a reason for exclusion.
(3) Before a decision is taken on the exclusion of the member, there shall be no further proceedings in the case.
Article 4
Rapporteurs
(1) The Chairman of the Board shall for each point of law designate a member of the Board, or himself, as rapporteur. The Chairman may appoint an additional rapporteur.
(2) If an additional rapporteur is appointed, the steps referred to in paragraphs 3 to 5 shall be taken by the rapporteur and additional rapporteur jointly unless the Chairman directs otherwise.
(3) The rapporteur shall carry out a preliminary study of the point of law and may prepare communications to the parties subject to the direction of the Chairman of the Board. Communications shall be signed by the rapporteur on behalf of the Board.
(4) The rapporteur shall make the preparations for meetings of the Board and for oral proceedings.
(5) The rapporteur shall draft decisions.
(6) If a rapporteur or additional rapporteur considers that his knowledge of the language of the proceedings is insufficient for drafting communications or decisions, he may draft these in one of the other official languages. His drafts shall be translated by the European Patent Office into the language of the proceedings and the translations shall be checked by the rapporteur or by another member of the Board.
Article 5
Registry
(1) A Registry shall be established for the Enlarged Board of Appeal. The Senior Registrar of the Boards of Appeal shall be responsible for the discharge of its functions.
(2) The authority referred to in Rule 10(2) may entrust to the Senior Registrar tasks which involve no technical or legal difficulties, in particular in relation to arranging for inspection of files, issuing summonses to oral proceedings and notifications and granting requests for further processing of applications.
(3) Minutes of oral proceedings and of the taking of evidence shall be drawn up by the Senior Registrar or such other employee of the Office as the Chairman may designate.
Article 6
Attendance of interpreters
If required, the Chairman of the Board shall make arrangements for interpreting during oral proceedings, the taking of evidence or the deliberations of the Board.
Article 7
Change in the composition of the Board
(1) If the composition of the Board is changed after oral proceedings, the parties to the proceedings shall be informed that, at the request of any party, fresh oral proceedings shall be held before the Board in its new composition. Fresh oral proceedings shall also be held if so requested by the new member and if the other members of the Board have given their agreement.
(2) The new member shall be bound to the same extent as the other members by an interim decision which has already been taken.
(3) If, when the Board has already reached a final decision, a member is unable to act, he shall not be replaced by an alternate. If the Chairman is unable to act, the legally qualified member of the Board having the longest service on the Board or, in the case where members have the same length of service, the eldest member shall sign the decision on behalf of the Chairman.
Article 8
Consolidation of points of law
If two or more points of law have been submitted with the same or similar subject-matter, the Board may consider them in consolidated proceedings.
Article 9
Oral proceedings
(1) If oral proceedings are to take place, the Board shall endeavour to ensure that the parties have provided all relevant information and documents before the hearing.
(2) The Board may send with the summons to oral proceedings a communication drawing attention to matters which seem to be of special significance, or to the fact that questions appear no longer to be contentious, or containing other observations that may help concentration on essentials during the oral proceedings.
(3) If oral proceedings take place, the Board shall endeavour to ensure that each case is ready for decision at the conclusion of the oral proceedings, unless there are special reasons to the contrary.
Article 10
Communications to the parties
If the Board deems it expedient to communicate with the parties regarding a possible appreciation of substantive or legal matters, such communication shall be made in such a way as not to imply that the Board i s in any way bound by it.
Article 11
Deliberations preceding decisions
Only members of the Board shall participate in deliberations; the Chairman may, however, authorise other officers to attend. Deliberations shall be secret.
Article 12
Order of voting
(1) During the deliberations between members of the Board, the opinion of the rapporteur shall be heard first, followed by that of the additional rapporteur if one has been appointed and, if the rapporteur is not the Chairman, the Chairman's last.
(2) If voting is necessary, votes shall be taken in the same sequence; even if the Chairman is the rapporteur, he shall vote last. Abstentions shall not be permitted.
Article 13
Opinions on points of law
The foregoing provisions shall apply mutatis mutandis to opinions on points of law referred to the Board by the President of the EPO pursuant to Article 112 (1) (b) of the Convention.
Article 14
Binding nature of the Rules of Procedure
These Rules of Procedure shall be binding upon the Enlarged Board of Appeal, provided that they do not lead to a situation which would be incompatible with the spirit and purpose of the Convention.
Article 15
Entry into force
These Rules of Procedure shall enter into force on the date on which they are approved by the Administrative Council of the European Patent Organisation.
Done at Munich, 10 December 1982
For the Enlarged Board of Appeal
The Chairman
R. Singer
1 Decision CA/D6/82