Friday 8 April 2011

Are the EPO Boards of Appeal Independent Courts?

 Oliver Randl has found an interesting decision on K's law. It actually relates to the question whether or not the EPO's BoA are entitled to revoke a patent.

A petitioner requesting a review by the Enlargend BoA had argued that the Boards of appeal don not fulfill the requirements of an independent court. The same line of reasoning had led to the separation of the German Patent Court 20 years ago from the Patent Office (DPMA).

Although this argument appears to be very despearte at first sight, the argument is maybe not as absurd as it might seem given that the same argument was used in a discussion on the case law of the BoA by Robin Jacob LJ in Munich. However, Jacob questioned the EPO's procedural rules by referring to Article 32 TRIPS, saying "An opportunity for judicial review of any decision to revoke or forfeit a patent shall be available." This is not the case if the patent is revoked after an appeal against an unsuccessful opposition such that - surprisingly - the EPC is not consistent with TRIPS. This aspect was disregarded by both the ECJ and the EBoA in their decisions.
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