Europe 18 Mar 2020

New rules for EPO Boards of Appeal

The Rules of Procedure of the Boards of Appeal (RPBA), the set of rules of the EPO Board of Appeal (BoA), have been revised. The changes came into force on January 1, 2020, with the purpose to increase efficiency, increase predictability and create harmonization around the work and decisions of the BoA.

In addition to efficiency, predictability and harmonization, parts of case management have been introduced so that Boards of Appeal can better organize their work and use their resources more efficiently.

One change already visible to the public, is that at the beginning of each year, the responsible Chairman / Chairwoman of each BoA will publish a list of ongoing cases in which oral proceedings, communications or decision are likely during the year. The list is available on EPO’s website here.

However, the most important changes for patent owners are found in how, and on what grounds, BoA will accept appeals. Amendments to Article 12 clarify that an appeal must refer to the claims, facts, arguments and evidence that formed the basis of the decision in the previous instance. Everything else is considered to be changes that “may be admitted only at the discretion of the Board”, and these changes will need to be justified for BoA. The clarification means that, like previously, the claims, facts, arguments and evidence that should have been submitted at first instance should not be included in the appeal.

Amendments to Article 13 states that any amendments to a case after the grounds of appeal (or reply to the same) should be strictly handled, meaning that any amendments to the case are only allowed if they “prima facie, overcomes the issues raised by another party in the appeal proceedings or by the Board and does not give rise to new objections”. In addition, Article 13 now states that amendments after the deadline for an R 100 (2) Communication or Summons to Oral Proceedings should only be taken into account under exceptional circumstances.

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