EPO petitions for review are not third level hearings

Case R 0005/14, Apparatus for circulating flows of washing and rinsing liquids in a laundry washing machine/CANDY SpA (4 March 2015) a reminder from the Enlarged Board of Appeal of the European Patent Office (EPO) that petitions for review of decisions of the EPO's Technical Board of Appeal are not third level hearings, despite the view that many petitioners seem to take to the contrary. The review procedure is an exceptional means of redress, introduced into the amended European Patent Convention 2000 with a view to rectifying intolerable procedural violations.

The review procedure, as the Enlarged Board emphasises, was never intended to operate as a third instance. As it states in its decision:

2.2 As to the substantiation of the petition, the Enlarged Board can see no evidence that the dismissal of the appeal results from any violations of the right to be heard or from other procedural defects within the meaning of Article 112a and Rule 104 EPC. ...

The reference made to gaps in the minutes to support the petitioner's argument that it was impossible to verify –in the absence of a recording of the oral proceedings – whether his arguments were indeed taken into account, or to establish the circumstances surrounding the Board's refusal of his request to hear a university professor, is immaterial: the Enlarged Board notes that all the petitioner's grounds mentioned in the petition received a written response, irrespective of their relevance or acuity. However, as shown by ... the contested decision, some of them were completely ineffective or even alien to
patent law. In such circumstances, it may well be that the petitioner has not grasped the full import of the reasons given for the decision, but if so, that certainly does not mean that the Board has infringed his right to be heard.

3. The review procedure is an exceptional means of redress created by the legislator in the amended EPC 2000 with a view to rectifying intolerable procedural violations. It was never intended to operate as a third instance. These principles were established in the first decisions taken on petitions for review (see e.g. R 0001/08 of 15 July 2008, Reasons 2 and 3). The right to be heard does not mean that the Board must accept argumentation; it must merely consider it. Equally, it does not mean that the Board has to allow requests; it simply has to give reasons when refusing them. If the Board's response does not satisfy a party, that is not a procedural violation; it simply means that the Board took a different view of the facts. And that is not a matter for the Enlarged Board. ...

This blogger is willing to bet that this is not the last time that a petition for review will be made in the hope that it will fulfil the function of a further level of hearing.