CLR V B Proceedings before the Enlarged Board of Appeal

Referral under Article 112 EPC

Referral by a board of appeal

Discretion of the board

Relevance of the referred question for the underlying case

Question of law

Pending proceedings

Ensuring uniform application of the law

Point of law of fundamental importance

Referral by the President of the EPO

Discretion of the President

Differing decisions

Two boards of appeal

Procedural issues

Question already decided by the Enlarged Board

Question already pending before the Enlarged Board

Stay of first instance proceedings following a referral

Stay of appeal proceedings following a referral

Petition for review under Article 112a EPC

Transitional provisions

Article 112a(1) EPC – adversely affected party entitled to file a petition for review

Scope of review by the Enlarged Board of Appeal

Article 112a(2) EPC – grounds for a petition for review

Grounds listed exhaustively

No suspensory effect – review of substantive law excluded

Petitions for review of an interlocutory decision

Obligation to raise objections

Purpose of Rule 106 EPC

Requirements of a valid objection

Recognisable immediately as an objection, defect clear and unambiguous

Objection raised in good time by persons capable of validly doing so

Different defects must be objected to and considered separately

Examples of invalid objections

Minutes as evidence that the objection was raised

Objection could not have been raised

Compliance with Rule 106 EPC left open

Contents of the petition for review

Petition must be adequately substantiated

Non-compliance with Rule 107 EPC and failure to remedy a deficiency

Time limit for filing a petition for review

Article 12(1) RPEBA – late-filed submissions in the review procedure

Rule 109 EPC – composition of the Enlarged Board and review procedure

Composition of the Enlarged Board of Appeal

Involvement of parties other than the petitioner in petition for review proceedings

Procedural efficiency

Factual bases for the review – minutes and grounds for the decision

Burden of proof

Effects of a successful petition for review

Decision of board of appeal set aside

Replacement of board members

Reimbursement of the fee for petitions for review

Grounds for petition for review

Article 112a(2)(a) EPC – alleged breach of Article 24 EPC

Article 112a(2)(b) EPC – person not appointed as a board member

Article 112a(2)(c) EPC – alleged fundamental violation of Article 113 EPC

"Fundamental" violation of Article 113 EPC – causal link and adverse effect

No prior assessment of the merits of a submission

Objective approach – board's intention irrelevant

No obligation to provide detailed reasons for a decision in advance

Boards' obligation to remain neutral

Parties' obligation to participate actively in the appeal proceedings

Reasons for a decision allegedly surprising

No opportunity to comment, surprising reasons

Grounds not emanating from the board

Subjective surprise

Reasoning formed part of the proceedings

Timing of a decision allegedly surprising

Consideration of the parties' arguments in the written decision

Requirement to have comments considered

No obligation to consider each and every argument

Parties' obligation to know the case law, references to decisions

No right to be heard separately on all requests

No right to a further hearing at first instance

No right to a referral under Article 112 EPC

No right to a communication; communication allegedly misleading

Late-filed submissions – boards' discretion under Article 13 RPBA 2007

Alleged violation of Article 113(2) EPC

Further examples of unsuccessful petitions

Successful petitions under Article 112a(2)(c) EPC

Article 112a(2)(d) EPC – any other fundamental procedural defect

Rule 104(a) EPC – failure to arrange requested oral proceedings

Rule 104(b) EPC – failure to decide on a party's request

Successful petition under Rule 104(b) EPC

Article 112a(2)(e) EPC – criminal act having an impact on a decision

Removal from office of a board member

Removal and judicial independence

Independence from disciplinary proceedings

Adversarial judicial proceedings

Publication of the decision

Reimbursement of costs

Source: http://www.epo.org/law-practice/legal-texts/html/caselaw/2019/e/clr_v_b.htm

Date retrieved: 17 May 2021

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Case Law Book

X CLR TOC OF CONTENTS

Case Law Book: V Priority

X CLR V PROCEEDINGS BEFORE THE BOARDS OF APPEAL

X CLR V B 1 Introduction

X CLR V B 2 Referral under Article 112 EPC

X CLR V B 2.1 General

X CLR V B 2.2 Composition

X CLR V B 2.3 Referral by a board of appeal

X CLR V B 2.3.1 General

X CLR V B 2.3.2 Discretion of the board

X CLR V B 2.3.3 Relevance of the referred question for the underlying case

X CLR V B 2.3.4 Question of law

X CLR V B 2.3.5 Pending proceedings

X CLR V B 2.3.6 Ensuring uniform application of the law

X CLR V B 2.3.7 Point of law of fundamental importance

X CLR V B 2.4 Referral by the President of the EPO

X CLR V B 2.4.1 General

X CLR V B 2.4.2 Discretion of the President

X CLR V B 2.4.3 Differing decisions

X CLR V B 2.4.4 Two boards of appeal

X CLR V B 2.5 Procedural issues

X CLR V B 2.5.1 Question already decided by the Enlarged Board

X CLR V B 2.5.2 Question already pending before the Enlarged Board

X CLR V B 2.5.3 Stay of first instance proceedings following a referral

X CLR V B 2.5.4 Stay of appeal proceedings following a referral

X CLR V B 3 Petition for review under Article 112a EPC

X CLR V B 3.1 General

X CLR V B 3.2 Transitional provisions

X CLR V B 3.3 ‍‍Article 112a(1) EPC – adversely affected party entitled to file a petition for review

X CLR V B 3.4 Scope of review by the Enlarged Board of Appeal

X CLR V B 3.4.1 ‍‍Article 112a(2) EPC – grounds for a petition for review

X CLR V B 3.4.2 Grounds listed exhaustively

X CLR V B 3.4.3 No suspensory effect – review of substantive law excluded

X CLR V B 3.5 Petitions for review of an interlocutory decision

X CLR V B 3.6 Obligation to raise objections

X CLR V B 3.6.1 Purpose of Rule 106 EPC

X CLR V B 3.6.2 Requirements of a valid objection

X CLR V B 3.6.2.A Recognisable immediately as an objection, defect clear and unambiguous

X CLR V B 3.6.2.B Objection raised in good time by persons capable of validly doing so

X CLR V B 3.6.2.C Different defects must be objected to and considered separately

X CLR V B 3.6.3 Examples of invalid objections

X CLR V B 3.6.4 Minutes as evidence that the objection was raised

X CLR V B 3.6.5 Objection could not have been raised

X CLR V B 3.6.6 Compliance with Rule 106 EPC EPC left open

X CLR V B 3.7 Contents of the petition for review

X CLR V B 3.7.1 Petition must be adequately substantiated

X CLR V B 3.7.2 Non-compliance with Rule 107 EPC and failure to remedy a deficiency

X CLR V B 3.8 Time limit for filing a petition for review

X CLR V B 3.9 ‍‍Article 12(1) RPEBA – late-filed submissions in the review procedure

X CLR V B 3.10 ‍‍Rule 109 EPC – composition of the Enlarged Board and review procedure

X CLR V B 3.10.1 Composition of the Enlarged Board of Appeal

X CLR V B 3.10.2 Involvement of parties other than the petitioner in petition for review proceedings

X CLR V B 3.10.3 Group parties

X CLR V B 3.10.4 Procedural efficiency

X CLR V B 3.11 Factual bases for the review – minutes and grounds for the decision

X CLR V B 3.12 Burden of proof

X CLR V B 3.13 Effects of a successful petition for review

X CLR V B 3.13.1 Decision of board of appeal set aside

X CLR V B 3.13.2 Replacement of board members

X CLR V B 3.13.3 Reimbursement of the fee for petitions for review

X CLR V B 4 Grounds for petition for review

X CLR V B 4.1 ‍‍Article 112a(2)(a) EPC – alleged breach of Article 24 EPC

X CLR V B 4.2 ‍‍Article 112a(2)(b) EPC – person not appointed as a board member

X CLR V B 4.3 ‍‍Article 112a(2)(c) EPC – alleged fundamental violation of Article 113 EPC

X CLR V B 4.3.1 General

X CLR V B 4.3.2 "Fundamental" violation of Article 113 EPC – causal link and adverse effect

X CLR V B 4.3.3 No prior assessment of the merits of a submission

X CLR V B 4.3.4 Objective approach – board's intention irrelevant

X CLR V B 4.3.5 No obligation to provide detailed reasons for a decision in advance

X CLR V B 4.3.6 Boards' obligation to remain neutral

X CLR V B 4.3.7 Parties' obligation to participate actively in the appeal proceedings

X CLR V B 4.3.8 Reasons for a decision allegedly surprising

X CLR V B 4.3.8.A No opportunity to comment, surprising reasons

X CLR V B 4.3.8.B Grounds not emanating from the board

X CLR V B 4.3.8.C Subjective surprise

X CLR V B 4.3.8.D Reasoning formed part of the proceedings

X CLR V B 4.3.9 Timing of a decision allegedly surprising

X CLR V B 4.3.10 Consideration of the parties' arguments in the written decision

X CLR V B 4.3.10.A Requirement to have comments considered

X CLR V B 4.3.10.B No obligation to consider each and every argument

X CLR V B 4.3.11 Parties' obligation to know the case law, references to decisions

X CLR V B 4.3.12 No right to be heard separately on all requests

X CLR V B 4.3.13 No right to a further hearing at first instance

X CLR V B 4.3.14 No right to a referral under Article 112 EPC

X CLR V B 4.3.15 No right to a communication; communication allegedly misleading

X CLR V B 4.3.16 Late-filed submissions – boards' discretion under Article 13 RPBA 2007

X CLR V B 4.3.17 Alleged violation of Article 113(2) EPC

X CLR V B 4.3.18 Further examples of unsuccessful petitions

X CLR V B 4.3.19 Successful petitions under Article 112a(2)(c) EPC

X CLR V B 4.4 ‍‍Article 112a(2)(d) EPC – any other fundamental procedural defect

X CLR V B 4.4.1 ‍‍Rule 104(a) EPC – failure to arrange requested oral proceedings

X CLR V B 4.4.2 ‍‍Rule 104(b) EPC – failure to decide on a party's request

X CLR V B 4.4.3 Successful petition under Rule 104(b) EPC

X CLR V B 4.5 ‍‍Article 112a(2)(e) EPC – criminal act having an impact on a decision

X CLR V B 5 Removal from office of a board member

X CLR V B 5.1 General

X CLR V B 5.2 Composition

X CLR V B 5.3 Removal and judicial independence

X CLR V B 5.4 Independence from disciplinary proceedings

X CLR V B 5.5 Adversarial judicial proceedings

X CLR V B 5.6 Publication of the decision

X CLR V B 5.7 Reimbursement of costs