The Enlarged Board of Appeal is the highest board of appeal within the European Patent Office (EPO). According to Article 22 of the European Patent Convention (EPC), the Enlarged Board of Appeal is responsible for:

a)    deciding on points of law referred to it by the (lower) Boards of Appeal;
b)    giving opinions on points of law referred to it by the President of the EPO;
c)    deciding on petitions for review of decisions made by the Boards of Appeal.

The Enlarged Board serves to ensure uniform application of the EPC. To this end Boards of Appeal and the President of the EPO may refer questions on points of law to the Enlarged Board of Appeal. In the former case the Enlarged Board serves only to decide on those points of law, and will remit the decision on the case itself back to the Board of Appeal that made the referral. In the latter case, a question may only be referred if there are conflicting Board of Appeal decisions relating on a point of law.

Petitions for review enable appellants who are adversely affected by a Board of Appeal decision to ask the Enlarged Board to review the case, but only very limited circumstances. These include where there has been a substantial procedural violation by the EPO (or the Boards of Appeal), or where there is an objection to a specific member of the Board of Appeal being included. In practice, petitions for review are very rarely granted.

Decisions of the Enlarged Board can have significant consequences on practice before the EPO, and provide much needed clarity. This series of articles provides a brief overview of pending and very recently decided questions before the Enlarged Board of Appeal. These are:

• G1/19 – Patentability of computer implemented simulations (pending)
• G3/19 – Patentability of plants and animals exclusively obtained by means of an essentially biological process (pending)
• G1/18 – Inadmissible or late filed appeals (decided July 2019 – awaiting publication of English translation)
• G2/19 – Location of EPO Oral Proceedings in Germany (decided July 2019 – awaiting written decision)

We will provide links to these decisions when they are published.

If you have any questions about these decisions or would like general advice on practice before the EPO, please get in touch to speak to of our attorneys.