Originally published in OJ EPO 2015, A35:
Decision of the Administrative Council of 25 March 2015 approving amendments to the Rules of Procedure of the Enlarged Board of Appeal of the European Patent Office (CA/D 3/15)
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 amendments to the Rules of Procedure of the Enlarged Board of Appeal, adopted on 19 March 2015 under Rule 13, paragraph 2, of the Implementing Regulations to the European Patent Convention,
HAS DECIDED AS FOLLOWS:
The amendments to the Rules of Procedure of the Enlarged Board of Appeal, as shown in the Annex to this decision, are hereby approved.
This decision shall enter into force on 25 March 2015.
Done at Munich, 25 March 2015
For the Administrative Council
Amendments to the Rules of Procedure of the Enlarged Board of Appeal, OJ EPO 1983, 3, as amended in OJ EPO 1989, 362, OJ EPO 1994, 443, OJ EPO 2003, 58, and OJ EPO 2007, 303
In accordance with Rule 13 of the Implementing Regulations to the Convention on the Grant of European Patents, the Enlarged Board of Appeal amends its Rules of Procedure. These amended Rules of Procedure read as follows:
Field of application
Business distribution and composition
(1) Before the beginning of each working year the members of the Enlarged Board of Appeal appointed under Article 11, paragraph 3, EPC shall draw up a business distribution scheme. This scheme shall designate the regular members and their alternates in proceedings under Article 23, paragraph 1, first sentence, EPC, Article 112 EPC and Article 112a EPC initiated during the year. The scheme may be amended during the working year.
(2) The Chairman of the Enlarged Board of Appeal shall determine the composition of the Board for each particular case in accordance with the business distribution scheme. In proceedings under Article 23, paragraph 1, first sentence, EPC, in accordance with paragraph 5 the composition of the Board shall be determined by the alternate of the Chairman of the Enlarged Board of Appeal.
(3) For the examination of a petition under Article 112a EPC conducted in the composition under Rule 109, paragraph 2(b), EPC, two legally qualified members shall supplement the composition specified in Rule 109, paragraph 2(a), EPC.
(4) In proceedings before the Enlarged Board of Appeal under Article 112, paragraph 1(a), EPC at least four of the members shall not have taken part in the proceedings before the Board of Appeal referring the point of law.
(5) In proceedings under Article 23, paragraph 1, first sentence, EPC the Enlarged Board of Appeal shall be composed according to the provisions of Article 22, paragraph 2, first sentence, EPC, the Chairman being replaced by his alternate, and two of the legally qualified members being external members of the Enlarged Board of Appeal.
(6) Article 24 EPC shall apply to proceedings under Article 112a EPC. The Chairman, appointed under Article 11, paragraph 3, EPC, of the Board against whose decision the petition for review has been filed may not take part in the review proceedings.
(7) The parties shall be informed of the Board's composition as soon as it has been determined or changed.
Replacement of members
(1) Members shall be replaced by alternates if they are prevented from participating, particularly as a result of 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.
(3) The Chairman of the Enlarged Board of Appeal may, in accordance with the business distribution scheme, designate another regular legally qualified member of the Board to act as Chairman in his stead.
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, EPC 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.
(1) The Chairman of the Board shall for each case designate a member of the Board, or himself, as rapporteur. The Chairman may appoint an additional rapporteur. The rapporteur of the Board as composed under Rule 109, paragraph 2(a), EPC shall generally go on to be the rapporteur for proceedings conducted in the composition under Rule 109, paragraph 2(b), EPC.
(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 case and may prepare communications to the eligible 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 or opinions.
(6) If a rapporteur or additional rapporteur considers that his knowledge of the language of the proceedings is insufficient for drafting communications or decisions or opinions, 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.
(1) A Registry shall be established for the Enlarged Board of Appeal. The Senior Registrar of the Boards of Appeal or the registrars assigned to him for this purpose shall be responsible for the discharge of its functions.
(2) The members of the Enlarged Board of Appeal appointed under Article 11, paragraph 3, EPC may entrust to the Registry 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, a registrar assigned to him for this purpose or such other employee of the Office as the Chairman may designate.
Change in the composition of the Board
(1) If the composition of the Board is changed after oral proceedings, the parties eligible to take part in 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) Paragraph 1 shall not apply to a change in composition under Article 2, paragraph 3. In this event, a request for oral proceedings shall continue to apply even where oral proceedings have already taken place.
(3) Each new member shall be bound to the same extent as the other members by an interim decision which has already been taken.
(4) 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.
Consolidation of proceedings
If two or more points of law with the same or similar subject-matter have been submitted, or two or more petitions to review the same appeal decision, the Board may consider them in consolidated proceedings.
EPO President's right to comment
In proceedings under Article 112 EPC the Board may, on its own initiative or at the written, reasoned request of the President of the European Patent Office, invite him to comment in writing or orally on questions of general interest which arise in the course of proceedings pending before it. The parties shall be entitled to submit their observations on the President's comments.
Statements by third parties
(1) In the course of proceedings under Article 112 EPC, any written statement concerning the points of law raised in such proceedings which is sent to the Board by a third party may be dealt with as the Board thinks fit.
(2) The Board may announce further provisions concerning such statements in the Official Journal of the European Patent Office if it seems appropriate.
Special communications to parties in proceedings under Article 112a EPC
Notwithstanding notifications or communications required under other provisions,
(a) the other parties shall be informed of the receipt of a petition for review and shall receive a copy of the petition, reference being made to Rule 109, paragraph 3, EPC;
(b) the parties shall be informed that a clearly inadmissible or unallowable petition for review has been rejected in oral proceedings;
(c) the parties shall be informed that a petition for review has been forwarded to the Board as composed under Rule 109, paragraph 2(b), EPC.
New submissions filed after expiry of the time limit in proceedings under Article 112a EPC
(1) Notwithstanding Rule 109, paragraph 3, EPC the Board may consider new submissions made by the petitioner after expiry of the time limit for filing petitions for review, if this is justified for special reasons.
(2) The same shall apply in proceedings conducted in the composition under Rule 109, paragraph 2(b), EPC to new submissions from the other parties filed subsequently to their reply.
Proceedings under Article 23, paragraph 1, first sentence, EPC
(1) A request that the Enlarged Board of Appeal make a proposal for the removal from office of a member under Article 23, paragraph 1, first sentence, EPC may be made to the Enlarged Board either by the Administrative Council of the European Patent Organisation or by the Vice-President of the European Patent Office in charge of the Boards of Appeal.
(2) In the case of such a request being made by the Administrative Council, the Administrative Council shall be represented in the proceedings. The Vice-President of the European Patent Office in charge of the Boards of Appeal shall also be entitled to be heard in such proceedings.
(3) In the case of such a request being made by the Vice-President in charge of the Boards of Appeal, he shall be a party to the proceedings.
(4) The member who is the subject of a request to make a proposal for their removal from office under Article 23, paragraph 1, first sentence, EPC shall be a party to the proceedings as respondent.
(5) The request referred to in paragraph 1 shall set out all the facts, arguments and evidence relied on. All documents referred to shall be attached.
(6) The proceedings shall be conducted in writing, where necessary or requested supplemented by oral proceedings according to Article 14, and may not be concluded without the respondent being informed of the facts, arguments and evidence underlying the request and having had the opportunity to be heard on them. The respondent may appoint a person to advise or represent him.
(7) Article 117, paragraph 1, EPC shall be applicable.
(8) The proceedings shall be conducted independently of any disciplinary or national proceedings.
(9) Unless and to the extent that the Enlarged Board decides otherwise, the proceedings shall not be public and shall be confidential.
(10) The Enlarged Board of Appeal may on request propose the reimbursement of some or all costs incurred in the proceedings by the respondent if the request to make a proposal for their removal from office has been rejected.
Non-binding communications from the Board
If the Board deems it expedient to communicate with the eligible 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 is in any way bound by it.
(1) If oral proceedings are to take place, the Board shall endeavour to ensure that the eligible parties have provided all relevant information and documents before the hearing.
(2) The Board's communication under Article 13 may draw attention to matters which seem to be of special significance, or to the fact that questions appear no longer to be contentious, or may contain other observations that may help concentration on essentials during the oral proceedings.
(3) A change of date for oral proceedings may exceptionally be allowed in the Board's discretion following receipt of a written and reasoned request made as far in advance of the appointed date as possible.
(4) The Board shall not be obliged to delay any step in the proceedings, including its decision, by reason only of the absence at the oral proceedings of any party duly summoned who may then be treated as relying only on its written case.
(5) The Chairman presides over the oral proceedings and ensures their fair, orderly and efficient conduct.
(6) When a case is ready for decision during oral proceedings, the Chairman shall state the final requests of the eligible parties and declare the debate closed. No submissions may be made by the parties after the closure of the debate unless the Board decides to re-open the debate.
(7) The Board shall ensure that each case is ready for decision at the conclusion of the oral proceedings, unless there are special reasons to the contrary. Before the oral proceedings are closed, the Board's decision or opinion may be announced orally by the Chairman.
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.
Deliberation and voting
(1) Only members of the Board shall participate in deliberations; the Chairman may, however, authorise other officers to attend. Deliberations shall be secret.
(2) 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.
(3) 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.
If, in proceedings under Article 112a EPC, the Board as composed under Rule 109, paragraph 2(a), EPC fails after deliberation to reach the unanimous conclusion that the petition for review should be rejected as clearly inadmissible or unallowable, it shall submit the petition without delay and without comment as to its merit to the Board as composed under Rule 109, paragraph 2(b), EPC for decision.
Reasons for the decision or opinion
(1) Subject to Rule 109, paragraph 2(a), EPC the decision or opinion of the Board shall be in accordance with the votes of the majority of its members.
(2) In proceedings under Article 23, paragraph 1, first sentence, EPC or Article 112 EPC, the reasons for such decision or opinion may also indicate the opinions held by a minority of the members if a majority of the members of the Board agrees. Neither the names of the members forming any such minority nor the size of such minority may be indicated.
(3) The final decision of the Enlarged Board of Appeal in proceedings under Article 23, paragraph 1, first sentence, EPC may be published, due regard being taken of the confidentiality of the proceedings.
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.
Entry into force
These Rules of Procedure shall enter into force on 1 April 2015.
Done at Munich, 19 March 2015
For the Enlarged Board of Appeal
Wim VAN DER EIJK