Petitions for review of European Patent Office (EPO) Appeal Board decisions by the EPO Enlarged Board of Appeal

Abstract

With the amendment to the European Patent Convention which came into effect in December 2007, there arrived the possibility for those unhappy with a decision by one of the European Patent Office's Boards of Appeal to petition the Enlarged Board of Appeal to review the decision, and return the case for re-hearing. The grounds on which such a petition could be founded are limited but for a patentee whose European Patent has been revoked, a petition represents the only possible way to have his patent reinstated. Unsurprisingly, the majority of petitioners in the first year and a half of the new system have been patentees. Only 1 petition out of the 16 disposed of has been successful and the Enlarged Board of Appeal has shown itself to be expeditious but firm. In this article, the decisions thus far taken by the Enlarged Board of Appeal are reviewed as are the petitions which are either pending or have been withdrawn in order to draw guidance as to how to avoid the necessity of petitioning or how to increase the chances of a petition being successful.