At the European Patent Office (EPO), any party to proceedings adversely affected by a decision may appeal the decision. Particularly, an appeal before a Board of Appeal at the EPO is the last instance of grant or opposition proceedings at the EPO, thereby giving rise to a determinative decision. The decision could be, for example, grant of a patent, maintenance of a granted patent revoked in opposition proceedings or revocation of a granted patent. That is, the decision may have very significant consequences.
In their decisions, the members of the Boards of Appeal shall comply only with the provisions of the European Patent Convention (EPC). In turn, the members shall comply with the Rules of Procedure of the Boards of Appeal (RPBA). The RPBA define inter alia what may be admitted, including discretionally, into appeal proceedings, such as facts, evidence or requests.
The EPO recently launched a consultation regarding proposed revisions to the RPBA. The proposed revisions further limit the scope of an appeal by enforcing a convergent approach to the appeal proceedings, via three levels of increasing restriction. In this way, the proposed revisions are intended to streamline appeal proceedings, by tightly constraining the appeal proceedings to only a review of the appealed decision.
However, these revisions appear to go beyond even the most restrictive practices today under the current RPBA. Proposed Articles 12(4), 12(6), 13(1) and 13(2) RPBA are particularly relevant, newly constraining admissibility of objections and arguments, as well as facts, evidence and requests, from the filing of the grounds of appeal through to oral proceedings.
While streamlining the appeal proceedings is welcomed generally, the proposed revisions appear to disadvantage Applicants and Patentees. This is particularly concerning in inter partes appeal proceedings. In our filed response comments to the consultation, we are seeking a more equitable approach, for those potentially disadvantaged by the proposed revisions.
