The Boards of Appeal consist of the Enlarged Board of Appeal, the Legal Board of Appeal and 28 Technical Boards of Appeal. For the allocation of appeals to the individual boards see the Business distribution schemes. The Boards of Appeal are located at the European Patent Office's headquarters in Munich, Germany. Following reform measures in 2016, and also to enhance the perception of their independence, the Boards moved to a separate building in Haar, on the outskirts of Munich, in 2017.
Previously, the Boards of Appeal, together with their administrative services, were integrated into the organisational structure of the European Patent Office as Directorate-General 3. However, in 2016 a structural reform was introduced to reflect the fact that, although part of the Office under Articles 4(2) and 15 EPC, the Boards have from the very start assumed the role of an independent judiciary, in accordance with Articles 21 to 23 EPC. It was therefore decided that, as part of the structural reform, the Boards should be separated at the organisational level from the other parts of the Office, to the extent possible within the current framework of the EPC. To this end, the Boards and their registries and support services were made into a separate organisational unit. This is now headed by the President of the Boards of Appeal, whose office was also created under the reform.
The Boards of Appeal are independent of the Office in their decisions, and they are bound only by the European Patent Convention.
The members of the Boards are bound only by the European Patent Convention (Article 23(3) EPC). According to the Convention, in their decisions the members of the Boards are not bound by any other instructions whatsoever, whether from the President of the European Patent Office or from the national authorities of the Contracting States to the European Patent Convention or from any other party. The office of member of the Boards of Appeal is comparable to that of a judge of a national court which reviews decisions of administrative bodies.
Members and Chairmen of the Boards of Appeal are appointed – upon a proposal from the President of the Boards of Appeal – by the European Patent Organisation’s Administrative Council for a term of five years (see Articles 11(3) and 23(1) EPC, and Rule 12d(2) EPC together with the Act delegating functions and powers from the President of the Office to the President of the Boards of Appeal, OJ EPO 2018, A63). They may be re-appointed upon a proposal from the President of the Boards of Appeal. For an individual re-appointment, the President of the Boards of Appeal draws up a reasoned opinion, which includes a performance evaluation. Subject to a positive opinion and performance evaluation and available budget posts, members shall be re-appointed (see Rule 12d(3) EPC).
Vacancies are advertised inside the European Patent Office (EPO) and externally.
Based on the results of the selection procedure, a committee establishes a list of suitable candidates for the President of the Boards of Appeal, who in turn proposes a candidate to the European Patent Organisation's Administrative Council, which either accepts or rejects the candidate in accordance with the provisions laid down in the European Patent Convention.
The Technical Boards, of which there are currently 28, and the Legal Board deal with appeals filed against decisions reached by the departments of first instance during and after the patent grant procedure, that is decisions of the Receiving Section, the Examining and Opposition Divisions, and the Legal Division.
In most cases the Technical Boards are competent, and they decide mainly on questions relating to the granting of and opposition to European patents under the European Patent Convention, but not on questions of patent infringement.
Where a granted European patent is opposed, the competent Technical Board may reject the opposition (the patent is maintained as granted), maintain the patent as amended, or revoke the patent.
The Legal Board of Appeal deals mainly with appeals by parties adversely affected by decisions of the Receiving Section and the Legal Division.
Technical Boards are usually composed of two members from the relevant technical field as well as one legal member, and in some circumstances three technically and two legally qualified members (see Article 21(3)(a) and (b) EPC). The Legal Board of Appeal is composed of three legal members.
The Enlarged Board of Appeal deals with cases referred to it by a Board of Appeal for a decision on an important point of law or in order to secure uniform application of the law. The President of the Office may refer a point of law for opinion, but only in cases where two Boards of Appeal have given different decisions on the same question. In such referral cases under Article 112 EPC the Enlarged Board of Appeal is composed of five legally qualified members and two technically qualified members.
Since the entry into force of the revised European Patent Convention in December 2007, the Enlarged Board of Appeal has also been competent to review decisions of the Boards of Appeal upon petition of a party (see Article 112a EPC). Petitions for review may only be based on a fundamental procedural defect or on a criminal act that may have had an impact on the decision of the Board of Appeal.
The Boards of Appeal currently receive about 3 000 new cases per year and settle over 2 700 cases.
The Enlarged Board of Appeal deals with two to three referrals and around fifteen review cases per year.
For further information, see the Annual report of the Boards of Appeal.
The case law that results from the decisions of the boards plays a major role in the development of the European Patent Office's patenting practice. The publication "Case Law of the Boards of Appeal" appears in an updated edition every three years, in all three official languages of the EPO, and provides a structured selection of decisions of the boards. The most recent edition can be consulted free of charge at www.epo.org/case-law.
An appeal may be filed by a party who is adversely affected by the decision at first instance. This is the case, for example (and in the main), when the examining division refuses a patent application, or when the opposition division revokes a contested patent or maintains it as granted or as amended following opposition proceedings. Such cases then come before a Technical Board of Appeal in the relevant technical field, whose members review the decision reached by the examining division (ex parte cases) or opposition division (inter partes cases).
Note: Opposition is a legal remedy against a granted European patent. Although an opposition division becomes responsible later than the examining division, it is still a department of first instance. Anyone is free to contest the grant of a patent by filing an opposition within a period of nine months after the publication of the mention of the grant in the European Patent Bulletin. This then initiates a formal review process during which the patent is reconsidered in the light of the objections made by the opponent(s). The decision of the opposition division can then be appealed before the Technical Boards of Appeal.
The current fee can be found under Article 2 item 11 of the Rules relating to Fees. This fee applies irrespective of the technical field and/or complexity of the case.
In the centralised procedures established by the European Patent Convention, the Boards of Appeal are the first and final judicial instance with appellate jurisdiction at European level. Accordingly, if a European patent is revoked by the Technical Board of Appeal, there is no further legal remedy at national level. If, however, a patent is upheld at the end of the appeal proceedings, a competitor may institute national nullity proceedings in a Contracting State if, for example, he wants the patent to be declared invalid in that country. The Boards of Appeal cannot refer any questions of law to the European Court of Justice because the legal systems of the European Patent Office - i.e. that of the European Patent Convention - and the EU are not connected with each other.
At its 148th meeting in Munich on 29 and 30 June 2016, the Administrative Council of the European Patent Organisation approved a comprehensive reform package concerning the Boards of Appeal. The aims of the reform were to strengthen the Boards’ organisational and managerial autonomy and increase their efficiency. The reform was effected within the existing framework of the European Patent Convention, without requiring its revision.
The Boards of Appeal and the Enlarged Board of Appeal, with their registrars and support services, are no longer integrated into the European Patent Office as Directorate-General 3, but form a separate organisational unit headed by the President of the Boards of Appeal.
The office of President of the Boards of Appeal was created by the 2016 reform. As head of the new organisational unit, the President of the Boards of Appeal, who is at the same time Chairman of the Enlarged Board of Appeal, carries out administrative and managerial duties delegated to him by the President of the European Patent Office. Hierarchically, he is not subordinate to the President of the Office but reports to the Administrative Council on the Boards’ activities.
The Boards of Appeal Committee (BOAC), which was also called into being as part of the reform, is a subsidiary body of the Administrative Council. The BOAC acts as a link between the Administrative Council and the Boards of Appeal, reports to the Administrative Council and provides guidance to the President of the Boards of Appeal on the management and organisation of the Boards of Appeal at a general level, especially with regard to matters of independence and efficiency.