Patent Law and Theory
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Patent Law and Theory

A Handbook of Contemporary Research

Edited by Toshiko Takenka

This major Handbook provides a comprehensive research source for patent protection in three major jurisdictions: the United States, Europe and Japan. Leading patent scholars and practitioners join together to give an innovative comparative analysis both of fundamental issues such as patentability, examination procedure and the scope of patent protection, and current issues such as patent protection for industry standards, computer software and business methods. Keeping in mind the important goal of world harmonization, the contributing authors challenge current systems and propose necessary changes for promoting innovation.
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Chapter 7: Appeal Procedure before the European Patent Office

Andrea Veronese


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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