EPO consulting on appeal-procedure rule-changes
19 February 2018
The EPO has announced a period of consultation regarding proposed revision of the Rules of Procedure of the Boards of Appeal (RPBA). The proposed revisions are part of the EPO's attempt to improve the efficiency and predictability of appeal proceedings.
In brief, the EPO appears to be limiting the scope of the appeal more strictly to a review of the first instance decision, and making it more difficult to amend the appeal. Further, the proposed revisions no longer allow for extensions of time for responding to the appellant’s grounds of appeal, in opposition-appeals. The proposed revisions also require the board to issue its decision in a timely manner (three months’ time, unless the board informs the parties otherwise). These proposed revisions are a clear indication of the EPO’s aim to avoid delays in the appeals procedure.
In detail, the proposed revisions mainly focus on Articles 10, 12, 13, 14 and 15 RPBA, with a number of minor revisions elsewhere to improve clarity and consistency.
In terms of accelerated proceedings (Article 10 RPBA), the revisions simply put the already established practice concerning accelerated proceedings into the rules. However, a party no longer needs to show a “legitimate interest” in order to secure acceleration; instead, they must show “objectively verifiable reasons”. The revisions are intended to replace the current Notice from the Vice-President Directorate-General 3 dated 17 March 2008 concerning accelerated processing before the boards of appeal (OJ EPO 2008, 220).
In terms of the basis of the appeal (Article 12 RPBA), the revisions specify that the appeal proceedings are a judicial review of the decision under appeal. In particular, proposed paragraphs (4)-(6) introduce a new “convergent approach” to appeal proceedings. This gives the board discretion not to admit parts of a party’s submissions which do not relate to the decision under appeal. Proposed paragraph (7) rules out extensions to the period for responding to an appellant’s grounds of appeal.
In terms of amendments to the appeal (Article 13 RPBA), the revisions impose further restrictions on amending one’s case in the appeal phase.
In terms of oral proceedings and issuing the decision (Article 15 RPBA), the revisions put the established practice concerning changing the date fixed for oral proceedings into the rules, and supersede the current Notice of the Vice-President of Directorate-General 3 of the European Patent Office dated 16 July 2007 concerning oral proceedings before the boards of appeal of the EPO (OJ EPO 2007, Special edition No. 3, 115). The revisions specify that the board must send a communication before oral proceedings drawing attention to the important issues. The revisions also set out that the board shall issue a decision on the appeal in a “timely manner”. This is indicated as “within three months” after closure of the oral proceedings, with the board required to inform the parties if it is unable to satisfy this requirement.
The consultation will remain open until noon (CEST) on 30 April 2018.
