• Gottfried Schüll

German constitutional complaints against the European Patent Office are unsuccessful

Constitutional Court confirms the required legal protection

Düsseldorf, January 12, 2023 - Several constitutional complaints against decisions of the Technical Boards of Appeal and the Enlarged Board of Appeal of the European Patent Office (EPO) are inadmissible. This is the result of a decision of the Federal Constitutional Court (BVerfG) of November 8, 2022, which was published on January 12, 2023.

The appellants, a German partnership and several legal entities from Germany, other EU countries and third countries, had essentially complained that the challenged decisions were based on a general and obvious lack of legal protection and violated fundamental procedural rights.

The Second Senate of the BVerfG, which deals primarily with disputes over competences within the German Federal structure and between the constitutional bodies themselves, came to the conclusion, among other things, that the complainants based in third countries were not entitled to appeal because they could not invoke the fundamental rights of the Basic Law. According to the BVerfG, all of the complainants cannot assert a violation of the rights to the lawful judge and to a fair hearing, as these can only be violated by decisions of German courts. In addition, the constitutional complaints which are immediately directed against the decisions of the Technical Boards of Appeal and the Enlarged Board of Appeal of the EPO lack a suitable subject matter for appeal. In the view of the BVerfG, the appellants have also not sufficiently substantiated that the minimum level of effective legal protection required by the constitution would not be achieved by the organization of the legal protection system of the EPO, at least not even after its structural reform.

The structural reform of the EPO adopted in 2016 resulted in particular in the Boards of Appeal and the Enlarged Board of Appeal being organized as a separate appeal unit. This newly created, autonomous unit is now headed by the President of the Boards of Appeal, who is also the Chairman of the Enlarged Board of Appeal. He is independent of the EPO President and is accountable only to the Administrative Council.

Some of the constitutional complaints against the EPO have been pending since 2010. The BVerfG's decision had therefore been long awaited. "With the decision now published, the Federal Constitutional Court has clarified that the Boards of Appeal of the European Patent Office guarantee the legal protection required by the Basic Law," says Gottfried Schüll, patent attorney and partner at Cohausz & Florack. "This should also have strengthened the confidence of patent owners in the EPO's legal protection system."

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