Tread cautiously: petitions for review


Marianne Holme

Since EPC 2000 entered into force, any party to an appeal proceeding that has been adversely affected by a decision of the European Board of Appeal can, pursuant to new Article 112a EPC, file a petition for review of the decision by the EBOA.

In Committee on Patent Law minutes covering preparatory work for EPC 2000, it was generally acknowledged that the purpose of introducing Article 112a EPC is “to create a comparable, strictly limited possibility to apply for a further review of decisions of the boards of appeal of the EPO”, realising that “under certain circumstances many legal systems offer a possibility to review final decisions of a court which are res judicata”, with the possibility to set aside a decision of a board of appeal only if it suffers from a major defect, so that maintaining it without further review would be intolerable.

The petition may be filed exclusively on any of the grounds from the exhaustive list below:

(a) a member of the Board of Appeal took part in the decision in breach of Article 24 paragraph 1, or despite being excluded pursuant to a decision under Article 24, paragraph 4

petition, Patent Law