Düsseldorf, 3 July 2019 - On 26 June 2019, the Administrative Council of the European Patent Office (EPO) unanimously adopted the new draft Rules of Procedure of the Boards of Appeal (RoP). The new rules will enter into force on 1 January 2020 and will apply to all pending and newly-filed appeals.
The Boards of Appeal of the EPO are an independent judicial body and have an important corrective function: they decide on appeals against decisions of the EPO (e.g. the rejection of a European patent application during examination or the revocation of a European patent during opposition procedures). The procedure before these Boards is governed by the RoP.
The amended RoP will make it more difficult to get new facts, evidence or claim requests admitted into the appeal proceedings. Case management within the Boards of Appeal is also affected by the changes. This is intended to give the Boards of Appeal more flexibility in the allocation of cases and scheduling to counteract the backlog of appeal proceedings and to reduce the duration of proceedings.
The first draft of the new RoP was discussed critically on 5 December 2018 within the framework of the "User Consultation Conference on the Rules of Procedure of the Boards of Appeal", in which C&F also participated. In particular, requests for more flexibility and a more generous transition period were expressed. Unfortunately, in the now-adopted version of the RoP, these requests have not really been taken into account. "As expected, there were no substantial concessions after the December 2018 user consultation and the 'hardliners' in the Committee have successfully insisted on the stricter rules on late-filing that they wanted to implement from the outset", says Dr. Natalie Kirchhofer, patent attorney and partner at C&F. Another issue that was awaited with particular interest is the exact nature of the transitional regulation. Now it is clear that at least for many already pending appeal cases it will still be possible to file new facts, evidence and requests for a certain time frame under the more generous conditions of the current RoP. "Anyone who is involved in ongoing appeal proceedings at the EPO should use the remaining time until the RoP enter into force to check what the stricter procedural rules mean for each individual case and whether there is a need for action" recommends Dr. Arwed Burrichter, patent attorney and partner at C&F.
The new RoP can be found here: https://www.epo.org/law-practice/case-law-appeals/communications/2019/20190704.html