Petition for review (Article 112a EPC)

The petition for review is the legal remedy that allows a party to ask the Enlarged Board of Appeal of the European Patent Office to set aside a decision of a Board of Appeal vitiated by a fundamental procedural defect. It was introduced as Article 112a of the European Patent Convention (EPC) by the 2000 revision and has been available since 13 December 2007. It does not constitute a third instance and allows no re-examination of the merits.

Exhaustive grounds

The petition may only be based on the grounds listed in the Convention and its Implementing Regulations:

• participation in the decision of a Board member in breach of the rules on exclusion and objection,
• the presence on the Board of a person not appointed as a member of the Boards of Appeal,
• a fundamental violation of the right to be heard guaranteed by Article 113 EPC,
• any other fundamental procedural defect defined in the Implementing Regulations, such as failure to hold oral proceedings despite a request to that effect or failure to decide on a relevant request,
• a criminal act that may have had an impact on the decision, established by a competent court or authority.

Admissibility requirements

The petition is open to any party to the appeal proceedings adversely affected by the decision. It must be filed within two months of notification of the decision or, where it is based on a criminal act, within two months of that act being established and no later than five years from notification. It is subject to payment of a fee and, unless this was impossible, to the condition that the defect was raised during the appeal proceedings and dismissed by the Board. The petition has no suspensive effect.

Practice of the Enlarged Board

The petition is first examined by a panel in restricted composition, which rejects petitions that are clearly inadmissible or unallowable. The success rate is very low, the Enlarged Board consistently pointing out that the procedure does not allow the application of substantive law to be challenged. Where the petition is allowed, the contested decision is set aside and proceedings are reopened before the Boards of Appeal. The stakes are considerable in opposition matters, since a Board of Appeal decision upholding revocation of the patent is final.

Key points

The petition for review offers narrow scrutiny of the fundamental guarantees of appeal proceedings and does not allow the case to be retried. Its success depends largely on the vigilance shown during the proceedings, since the defect must in principle have been raised before the Board. Any breach of the right to be heard should be raised immediately, care should be taken that the objection is recorded in the minutes, and action should be taken within two months of notification of the decision.

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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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