Haar, 27 September 2019
The Enlarged Board of Appeal announced the order of its decision in referral case G 2/19 at the end of the oral proceedings of 16 July 2019 on questions of law relating to the right to oral proceedings. The Enlarged Board, which constitutes the highest level of judicial authority at the EPO, clarified that a third party within the meaning of Article 115 EPC who files an appeal against a decision to grant a European Patent, based on an alleged lack of clarity of a patent claim, has no right to have its appeal discussed at oral proceedings before a Board of Appeal. The Enlarged Board further clarified that oral proceedings held before the Boards of Appeal at their site in Haar do not infringe a party's right to be heard under Article 113(1) EPC.
The Enlarged Board of Appeal was concerned with three questions of law referred to it under Article 112(1)(a) EPC by interlocutory decision of Technical Board of Appeal 3.5.03 of 25 February 2019 in case T 831/17.
After receiving numerous amicus curiae briefs under Article 10(1) of the Rules of Procedure of the Enlarged Board of Appeal and after discussing the issues at the public oral proceedings of 16 July 2019, the Enlarged Board rejected the first referred question as inadmissible and answered the reformulated questions 2 and 3 as follows:
The first issue was whether a third party within the meaning of Article 115 EPC, who appeals against a decision to grant a European patent, is entitled to oral proceedings concerning an alleged lack of clarity of granted claims. This question was answered in the negative. Referring to its decision G 3/14 (OJ EPO 2015, A102), the Enlarged Board confirmed that the unamended claims of a granted European patent may not be examined for compliance with the requirements of Article 84 EPC. With reference to decision G 1/97 (OJ EPO 2000, 322), the Enlarged Board held an appeal filed to this end to be clearly inadmissible. Hence, a Board of Appeal may immediately reject such an appeal as inadmissible in written proceedings, without observing further procedural formalities. The Enlarged Board further clarified that such a clearly inadmissible appeal does not have suspensive effect within the meaning of Article 106(1), second sentence, EPC.
The second issue concerned the relocation of the Boards of Appeal to a separate building in Haar in October 2017 as part of a comprehensive structural reform adopted by the Administrative Council of the European Patent Organisation in June 2016. The Enlarged Board stated that it was only prompted to rule on this matter insofar as it was related to the possible infringement of the procedural right of a party. In this respect, the Enlarged Board clarified that holding oral proceedings at the site of the Boards of Appeal in Haar does not infringe a party's right to be heard.
The Enlarged Board also noted that awareness of the need for the Boards of Appeal to have the same level of independence as national courts had only come to the fore gradually. Separating the Boards of Appeal geographically from the administrative departments of the European Patent Office in Munich highlighted this independence. It would not be convincing to endorse such a physical separation while at the same time limiting it to the area of the city of Munich. The Enlarged Board also observed that the Boards of Appeal were located only slightly outside the boundaries of the city of Munich.
The Enlarged Board's answers to the referred questions will not only enable the referring Board of Appeal to take a final decision, but also contribute to legal certainty in respect of appeals filed by a third party against a decision to grant a European patent and the arrangement of oral proceedings before the Boards of Appeal at their site in Haar.
The Enlarged Board was composed of five legally qualified and two technically qualified members, including the President of the Boards of Appeal as the Chairman and two judges from EPC Contracting States.
Registry of the Enlarged Board of Appeal