CLR IV F 2.3.7 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 IV.F.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 therefore of great interest not only to the parties to the specific appeal proceedings in question. 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 (see Art. 18(2) RPEBA) 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), it was held that a question is not sufficiently important when the legal framework on which the question is based (here: R. 58(5) EPC 1973) has changed in the interim and the question is 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, for example, also 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.

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EPC Articles

EPC Implementing Rules

Case Law Book

Case Law Book: IV Divisional Applications

Case Law of the Enlarged Board

General Case Law