Precedent, the European Patent Office and a chance to discuss

"What is precedent and does the EPO have it?" is the title of a blogpost today by Darren Smyth on the IPKat weblog, here, with some input from fellow bloggers David Brophy and me. It raises questions relating to, among other things, the extent to which European Patent Office Board of Appeal and Enlarged Board of Appeal are governed, in theory and in reality, by the principle of being either bound or strongly influenced by their own decisions and those of other tribunals, as well as the extent to which national courts and patent-granting authorities are influenced or bound by them.

The IPKat's colleague Merpel concludes that:

" ... whether a decision is non-binding and non-influential, non-binding but influential, or binding, is a matter that has a substantial impact on players other than the relevant court or tribunal: it affects the decisions of parties whether to file, oppose, litigate and so on. It also affects the decisions of legislators as to whether a rule needs changing or not. If it is consistently applied with a consequence that is considered undesirable, legislative intervention is more likely than where bad decisions are distributed among good ones because the latter are not binding. Therefore, she points out, lack of consistent understanding and terminology between practitioners before the EPO is highly undesirable".

It would be good to hear from practitioners from outside the zone of Common Law countries as well as those who have grown up with the habit of precedent and who intuitively give advice on the assumption that it exists.