Stages of the procedure before the boards of appeal
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195
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The boards decide on appeals at second and final instance. Their members are independent. In their decisions they are not bound by any instructions, and they must comply only with the EPC. The procedure before the boards is laid down in their Rules of Procedure.
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Art. 23(3)
OJ 2003, 89
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The technical boards of appeal are responsible for appeals against decisions of the examining divisions concerning the refusal of European patent applications or the granting of European patents and for appeals against decisions of the opposition divisions.
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Art. 21(3)(a), (4)
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The technical boards normally consist of three members (two technically qualified and one legally qualified). This is increased to five (three technically qualified and two legally qualified) if a legally qualified member was added to the department of first instance or if the board considers that the nature of the appeal so requires (enlarged composition - Art. 21(3)(a) and (b)).
In other cases, when technically and legally qualified members are not expected to sit at the same time, the boards consist of three legally qualified members (Art. 21(3)(c)). A Legal Board of Appeal deals with such procedures, and in particular with appeals against decisions of the Receiving Section and the Legal Division.
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196
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To ensure uniform application of the law or if an important point of law arises, referrals may be submitted to the Enlarged Board of Appeal. During proceedings on a case and either of its own motion or following a request from a party, a board of appeal may refer any question to the Enlarged Board if it considers that a decision is required for the above purposes. The Enlarged Board's decision is binding on the referring board. The President of the EPO may refer a point of law to the Enlarged Board if two boards of appeal have given different decisions on the issue.
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Art. 22, 112
OJ 2003, 83
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197
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The provisions relating to proceedings before the department which took the appealed decision are essentially applicable mutatis mutandis to appeal proceedings. After examining the case for the appeal and any observations of the other parties, the board of appeal gives the appellant directions for adding further submissions.
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Art. 110(2)
R. 66(1)
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Oral proceedings may be held at the request of a party or at the instance of the EPO.
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Art. 116
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198
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In deciding on the appeal, the board may either exercise any power within the competence of the department which took the appealed decision or remit the case to that department for further prosecution. In the latter case, the department is bound by the board's ratio decidendi, in so far as the facts are the same.
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Art. 111
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D. The European patent grant procedure
Interlocutory revision
