Different decisions 

According to the Enlarged Board in G 3/08 (OJ 2011, 10), the term "different/abweichende/divergentes" decisions in Art. 112(1)b EPC has to be interpreted in the light of the provision's object and purpose according to Art. 31 of the Vienna Convention on the Law of Treaties. The purpose of the presidential referral right under Art. 112(1)(b) EPC is to establish uniformity of law within the European patent system. Having regard to this purpose, the notion "different decisions" has to be understood restrictively in the sense of "conflicting decisions". Legal development is an additional factor which must be carefully considered. Development of the law is an essential aspect of its application and inherent in all judicial activity. Consequently, legal development as such cannot on its own form the basis for a referral, because case law does not always develop in linear fashion, and earlier approaches may be abandoned or modified.

Legal rulings are characterised not by their verdicts, but by their grounds. The Enlarged Board of Appeal may thus take obiter dicta into account in examining whether two decisions satisfy the requirements of Art. 112(1)(b) EPC (G 3/08; see also G 3/93, OJ 1995, 18).

A discrepancy between Office practice of the EPO and the case law of the boards of appeal is not in itself not sufficient to justify a referral by the President, unless the practice of the EPO is warranted by the case law (G 4/98, OJ 2001, 131).

In G 3/95 (OJ 1996, 169), the Enlarged Board considered the President's referral inadmissible due to the absence of different, i.e. conflicting decisions. In G 3/08 (concerning Art. 52(2) EPC, computer programs), the Enlarged Board said that T 424/03 indeed deviated from T 1173/97, but that this was a legitimate development of the case law and that there was no divergence which would make the referral admissible.

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