Enlarged Board of Appeal

The Enlarged Board of Appeal is the body of the European Patent Office responsible for ensuring uniform application of the European Patent Convention. Article 22 of the Convention gives it three tasks: deciding points of law referred by a Board of Appeal, giving opinions on points of law referred by the President of the Office, and deciding on petitions for review of decisions of the Boards of Appeal.

Referrals to the Enlarged Board of Appeal

A Board of Appeal refers a question to it where an important point of law arises or uniform application of the Convention requires it, under Article 112. The President of the Office may refer a point of law to it where two Boards have given different decisions. The petition for review, introduced by Article 112a, is limited to fundamental procedural defects and does not open a new examination on the merits, which explains the very low success rate of this route.

Effect of the decisions

Decisions of the Enlarged Board of Appeal, numbered G, bind the referring Board in the case concerned and in practice apply to all departments of the Office. Decision G 1/19 settled the treatment of computer-implemented inventions that simulate a technical system. Decision G 2/21 clarified the conditions under which an alleged technical effect may be relied on in assessinginventive step, a question discussed in the entry on plausibility.

Key points

The Enlarged Board of Appeal does not rule on the patent; it decides the point of law. Its involvement should be anticipated: an opposition whose outcome depends on a question pending before it may be stayed, and arguments are best drafted to track the question referred. Revocation of the patent, a possible outcome of opposition proceedings, is never pronounced by the Enlarged Board itself, which merely sets the rule that the Boards and divisions will then apply in each case.

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This glossary entry is general in scope and does not constitute legal advice.

Dhenne Avocats litigates patent disputes before the Paris Judicial Court, the Paris Court of Appeal and the Unified Patent Court. Where the question arises in a real case, the useful moment is almost always before proceedings are issued.

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