11.3.2 Specialized intellectual property judiciary
11.3.2.1 Boards of Appeal as the first and final judicial instance
The Boards of Appeal are the first and final judicial instance in the procedures before the EPO. They have the task of reviewing contested decisions of the departments of first instance. In their decisions, they are not bound by any instructions and must comply only with the provisions of the EPC.27 They are recognized as independent courts based on the rule of law.28
11.3.2.2 Specialization
The Boards of Appeal deal exclusively with patent cases and are therefore a highly specialized intellectual property judiciary. They usually decide in a composition of two technically qualified members and one legally qualified member.29 At the end of 2021, there were 196 board members and 28 Technical Boards of Appeal, each of which has a different technical specialization. The Boards of Appeal settled 3,395 patent cases in 2021.30
As expert patent courts, the Boards of Appeal have a central role in the development of European patent law. Their decisions are final and not subject to any further appeal. Their case law and interpretations of the EPC are not only the basis for the practices established by the EPO for examination and opposition proceedings but are also deemed highly persuasive in national court proceedings.31
The most important of the over 42,000 decisions that the Boards of Appeal have rendered from 1978 to 2021 are summarized in the book Case Law of the Boards of Appeal (in its 10th edition, published in 2022), which provides a compendious overview of their jurisprudence.32
11.3.2.3 Enlarged Board of Appeal
The Enlarged Board of Appeal is mainly responsible for ensuring the uniform application of the EPC. It decides on points of law of fundamental importance referred to it either by a Board of Appeal or by the President of the EPO.
When a Board of Appeal refers a specific point of law to the Enlarged Board, the Enlarged Board decides only that point. The decision on the appeal itself is then taken by the referring Board, which is bound by the decision of the Enlarged Board in respect of the point of law that it referred.
The President of the EPO may also make a referral to the Enlarged Board, provided that two Boards of Appeal have given different decisions on a point of law of fundamental importance.33 The Enlarged Board of Appeal will then give an opinion on this point of law.
If a Board of Appeal considers it necessary to deviate from an interpretation or explanation of the EPC contained in an earlier opinion or decision of the Enlarged Board of Appeal, it must refer the question (again) to the Enlarged Board of Appeal.34
A further task of the Enlarged Board is a limited judicial review of decisions of the Boards of Appeal regarding possible fundamental procedural defects.35 If a petition for such a review is successful, the decision is set aside, and the appeal proceedings are reopened before the Boards of Appeal.36