CLR IV F 3.8 109 EPC - composition of the Enlarged Board and review procedure

Unless otherwise provided, the provisions relating to proceedings before the boards of appeal apply (R. 109(1) EPC). The RPEBA also apply in proceedings under Art. 112a EPC (Art. 1 RPEBA).

Petition for review proceedings consist of two stages. In the first stage, a panel of the Enlarged Board composed of three members (two legally qualified, one technically qualified) examines all petitions for review and rejects those which are clearly inadmissible or clearly unallowable (unanimity is required; R. 109(2)(a) EPC). Those not rejected are considered by a panel composed of five members (four legally qualified, one technically qualified; R. 109(2)(b) EPC). In these cases, the three-member panel under R. 109(2)(a) is supplemented by two further legally qualified members (Art. 2(3) RPEBA). The chairman of the board against whose decision the petition was filed may not take part in the proceedings (Art. 2(6) RPEBA).

The travaux préparatoires stress the need for a quick screening process to be conducted by a three-member panel of the Enlarged Board in order to reject petitions which clearly cannot succeed. In the basic proposal for the revision of the EPC it was even stated that no oral proceedings should take place before the three-member panel (CA/100/00, p. 139). However, this sentence was deleted (see explanatory remarks on the revision of the EPC, OJ SE 4/2007, p. 126) and, as far as the petitioner is concerned, Art. 116 EPC also applies in the first stage of the proceedings (R 5/08).

Parties other than the petitioner are not to be involved in the first stage of petition for review proceedings (R. 109(3) EPC; R 7/14). In R 5/08 the Enlarged Board held that non-petitioner parties, as long as they are not involved, have no right to be heard that could be violated. Although not summoned to oral proceedings in the first stage, non-petitioner parties may, however, attend such proceedings which are public.

Petition for review proceedings should by their nature be dealt with as speedily as possible, acceleration requests are therefore unnecessary (R 18/09, R 15/13). In R 11/12 the board also stated that petitions for review should, in the interest of legal certainty, be dealt with expeditiously, and did not consider a planned birthday party a reason justifying the fixing of a new date for oral proceedings before the Enlarged Board.

R. 109(1) EPC provides that certain specific procedural time limits do not apply to petition for review proceedings. This allows the Enlarged Board to shorten these time periods in the interest of procedural efficiency. However, it clearly provides no justification for parties to disregard time limits set by the Enlarged Board itself (R 5/08).

In R 18/09 the Enlarged Board held that the principles set out in G 3/99 (OJ 2002, 347), also apply to petition for review proceedings, namely that a plurality of persons acting in common must be treated as a single party (a "group party") and that such a group party must act through a common representative.

In R 21/11, the Enlarged Board stated that the only condition for the fee for a petition for review to be reimbursed under R. 110 EPC is that the proceedings before the board of appeal are re-opened (a reimbursement request is not required).

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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