1.2.1 Courts of law under the EPC

In G 1/86 the Enlarged Board held that those EPC provisions governing the independence of members of the boards of appeal (Art. 23 EPC), their competence and method of work and the nature of the decisions they take, indicate that the boards act as courts with the task of ensuring that the law is respected when the EPC is applied. Moreover, there is no appeal against decisions of the boards. In the member states of the European Patent Organisation decisions by departments of last instance, i.e. those terminating proceedings concerned with checking the legality of administrative actions and the protection of the rights of the individual, can only be taken by courts of law. Since that decision, however, the situation has changed in that Art. 112a EPC, introduced as part of the revised EPC 2000, now provides for the possibility of reviewing final decisions of the boards in exceptional cases (see chapter V.B.3.).

In T 1400/11 the board stated that according to the Enlarged Board in G 7/91 and G 8/91 (OJ 1993, 356, 346, point 7 of the Reasons), G 9/91 and G 10/91 (OJ 1993, 408, 420, point 18 of the Reasons) and G 1/99 (OJ 2001, 381, point 6.6 of the Reasons), the appeal procedure is to be considered as a judicial procedure proper to an administrative court. See also chapter V.A.1. "Legal character of appeal procedure". In G 2301/15 the Enlarged Board stated that the board members' function as judges was generally recognised. In G 2301/16, concerning the same case, the Enlarged Board saw the Office President’s letter of 10 June 2016 as a violation of Art. 23(3) EPC (judicial independence). It considered that the pressure exercised by the Office President in this case was incompatible with the judicial independence of the Enlarged Board guaranteed by the EPC. The Enlarged Board’s judicial independence in deciding on this case was fundamentally denied.

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