Revised Rules of Procedure of the Boards of Appeal to Come Into Force from 1 January 2020

5 July 2019

The EPO’s Administrative Council approved amendments to the Rules of Procedure of the Boards of Appeal (RPBA) at its 160th meeting on 26 and 27 June 2019 (see here). The full text of the revised RBPA can be found here. Together with the European Patent Convention itself, the RPBA govern the appeals procedure at the EPO. The revised RPBA will come into force on 1 January 2020.

According to Article 25 of the RPBA, the revised version of the RPBA will apply to any appeal that is pending on, or filed after, 1 January 2020, except in two circumstances.

First, the revised RPBA will not apply if a summons to oral proceedings or a communication under Rule 100(2) EPC (an invitation from the Board of Appeal to file observations) is issued prior to 1 January 2020. 

Second, Article 12, paragraphs 4 to 6 of the revised RPBA (which relate to the admissibility of new requests, facts, evidence and objections filed during the appeal proceedings) shall not apply to any statement of grounds of appeal filed prior to 1 January 2020.

The EPO states that the main aims of the revisions are to “increase (i) efficiency, by reducing the number of issues to be treated, (ii) predictability for the parties and (iii) harmonisation”. With regard to point (i), Article 12, paragraphs 4 to 6 of the revised RPBA may make it harder for appealing parties successfully to get new requests, facts, evidence and/or objections admitted during appeal proceedings. Accordingly in cases where it would be advantageous for new requests, facts, evidence and/or objections to be admitted during an appeal, it would be advisable to file the statement of grounds of appeal prior to 1 January 2020 where possible.

Presumably also with the intention of increasing efficiency, the revised RPBA allow for an “abridged” decision to be issued under certain circumstances. In particular, according to Article 15, paragraph 7, an abridged decision may be issued if all the parties agree, unless it has been indicated to the Board that a third party or court has a legitimate interest in the decision not being abridged. Further, Article 15, paragraph 8 allows for the Board to issue an abridged decision if it agrees with the finding and reasoning of the department which issued the decision under appeal. There is no requirement for the agreement of the parties in this latter scenario. It will be interesting to see how often Boards decide to issue abridged decisions, particularly in the latter scenario.

 

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