2.3.7 Point of law of fundamental importance

The requirement that the referred question must either concern a lack of uniform application of the law by the boards or a point of law of fundamental importance concerns both referrals by a board and referrals by the President (see in this chapter V.B.2.4.1).

G 1/12 (OJ 2014, A114) concerned the correction of errors regarding the identity of the appellant and, in this context, the admissibility of an appeal. The Enlarged Board held that the referred question related to a "point of law of fundamental importance" because it was relevant to a large number of similar cases (see also T 271/85, OJ 1988, 341, T 1242/04, OJ 2007, 421 and T 1676/08: "a substantial number of similar cases") and was therefore of great interest not only to the parties to the specific appeal proceedings in question (see also T 590/18). Settling this point of law was important not only to the users of the European patent system but also to the boards of appeal and the department of first instance in examination and opposition proceedings. A minority of the members of the Enlarged Board disagreed and considered the referral inadmissible. According to the minority, the majority's view implied that "importance" within the meaning of Art. 112 EPC was nothing more than mere relevance. The number of cases affected, however, was neither a suitable nor an appropriate criterion for establishing the admissibility of a referral. In G 1/13 (OJ 2015, A42), the Enlarged Board confirmed the view of the majority in G 1/12.

In T 26/88 (OJ 1991, 30) the board held that a question was not sufficiently important when the legal framework upon which the question was based (here: R. 58(5) EPC 1973) had changed in the interim and the question was therefore unlikely to arise again very often. Similarly, in T 2459/12, the board stated that a question regarding a point of law the answer to which would affect only a relatively small number of applicants for a limited period of time, after which it would become obsolete (here: due to an amendment to R. 164 EPC), was not a question relating to a point of law of fundamental importance.

The lack of case law on a particular issue is in itself not a sufficient reason to refer a question to the Enlarged Board (T 998/99).

In J 5/81 (OJ 1982, 155) the appellant requested the referral of a question which the board considered an important point of law. The board refused the appellant's request nevertheless, as the question could be answered by reference to the EPC without doubt (see also, for example, J 14/91, OJ 1993, 479; T 1196/08; T 1676/08; T 2477/12). In T 39/05, the board already denied the existence of an important point of law if a question could be answered by reference to the EPC without doubt.

In J 10/15 the Legal Board was of the opinion that the legal situation in the case in hand was clearly to be derived from the EPC and the PCT, so that there was no question of law of fundamental importance which could justify a referral to the Enlarged Board of Appeal.

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