A Handbook of Contemporary Research
Edited by Toshiko Takenka
Chapter 7: Appeal Procedure before the European Patent Office
Andrea Veronese* Introduction Parties negatively affected by a decision of a first instance department of the European Patent Office (EPO) have the possibility of appealing and challenging the decision before a Board of Appeal, which is the second and final instance of the EPO. The decisions of the Board of Appeal are final, and may not be made subject to a further appeal. As an exceptional measure, according to Article 112a of the revised European Patent Convention it is possible to challenge a decision of the Board before the Enlarged Board of Appeal on the grounds that intolerable procedural deficiencies occurred during the appeal proceedings or that a criminal act had an impact on the decision. The petition is, however, not a measure to revise the application of substantive law by the Board. Excluding the rare cases where this remedy is applicable, the decision of the Board of Appeal cannot be the subject of any further legal action and has the force of ‘res judicata’. Yet, if a European patent is granted or maintained by the Board, the res judicata effect does not rule out further legal actions aimed at revoking the patent before the competent national authorities of the states where a patent has effect.1,2 To ensure a uniform application of the law, when the case law of the Boards of Appeal becomes inconsistent, or important points of law arise, the Enlarged Board of Appeal can be requested3 to make a decision or to give an opinion on...
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