Reform of Boards of Appeal - Advance to Go

Back from his the holiday break, this blogger was eager to learn about the fate of the proposal for the reform of the technical Boards of Appeal presented at the pre-Christmas meeting of the EPO's administrative council which had been held on 16 and 17 December 2015 in Munich. The proposal had been outlined in the document CA/16/15 and had been the subject of a user consultation, the results of which (as interpreted by president Batistelli) had been published here. Quite a few rumors had been spread in advance and the communiqué has now been published on the EPO website.

As for the Reform of the Boards of Appeal, the communiqué contains the following statement (emphasis added):

The Council then had an exchange of views on the envisaged structural reform of the EPO Boards of Appeal. It mandated its Board 28 to elaborate guidelines to serve as a basis to the President for the drafting of concrete proposals to be submitted for decision to the Council possibly at its March 2016 meeting.

In my understanding this means that the proposal CA/16/15 has been rejected entirely rather than being remitted for entering modifications. Further, it is remarkable that the AC considers it to be necessary to elaborate guidelines to serve as a basis to the President for the drafting of concrete proposals rather than relying in the president's capacity to draft proposals alone.

Mission impossible? Following EPO infringement rulings

This week's ruling of the UK's Supreme Court in Schütz v Werit [2013] UKSC 16 has already been noted on this weblog, has attracted a good deal attention on account of its potential impact on the spare parts sector. However, it is not just the substantive ruling that has captured attention.  It's worth taking note of paragraph 38 of the decision in which Lord Neuberger, delivering a speech with which the four other judges agreed, said:

"The House of Lords and this court have emphasised on a number of occasions the desirability of national courts following the established approach to infringement of the Technical Board of Appeal of the European Patent Office (“the EPO”), and the German Bundesgerichtshof (“the BGH”) have taken the same view – see, most recently, Human Genome Sciences Inc v Eli Lilly & Co [2011] UKSC 51, [2012] 1 All ER 1154, paras 84-87, and Case Xa ZR 130/07".

Bearing in mind the words in bold red type, if you then click through to the EPO's Board of Appeal FAQs, you will find this:

What do the technical boards of appeal and the Legal Board of Appeal do?

The technical boards of appeal and the Legal Board deal with appeals filed in relation to decisions reached by the first instance in the patent grant procedure, that is the Receiving Section and the Examining, Legal and Opposition Divisions.

They decide on questions relating to the granting of and opposition to European patents under the European Patent Convention, but not on questions of patent infringement.

The Legal Board of Appeal deals mainly with appeals by parties adversely affected by decisions of the Receiving Section and the Legal Division.

The technical boards may order that an opposed patent be maintained in its entirety or in part only, or that it be revoked.

PatLit thanks Gary Moss (EIP) for digging up the EPO link for us.