Oppositions (15) – Petition for review

A party who has been adversely affected by a decision of a Board of Appeal can petition the Enlarged Board of Appeal to review the decision, but only on very limited grounds.  The threshold for accepting a petition is high and petitions are rarely admitted.  Only around 20 petitions are filed each year, and a very rough count suggests around 10 petitions have been successful since the procedure was first available in 2008. 

The review process is only for procedural defects, not the application of substantive law. The process is not therefore a further level of appeal on the facts of a case, but a review to ensure procedure is correctly followed. 

A prerequisite for an admissible petition is that the objection was raised during the appeal and was dismissed, unless the objection could not be raised at that time (for example where the petitioner is not aware of the defect until later).  If the objection was not raised at the time, and could have been, the petition will be inadmissible. 

The procedure for a petition is similar to an appeal.  The petition must be filed with details of the objection and why the decision should be set aside.  As a first step the Enlarged Board considers if the petition is admissible in the sense of whether it falls within the permitted categories for review.  After written submissions petitions conclude with oral proceedings before the Enlarged Board leading to a final decision.  If a petition is successful the decision under review is set aside and the appeal procedure is re-opened, which may be done under a different Board of Appeal. 

The EPC sets out five areas in which a petition can be filed. 

Excluded member

A petition can be made if a member of the Board of Appeal should have been excluded due to a conflict of interest, or having been involved in the case previously as a representative or member of the EPO,  or where a member had been excluded but remained involved. 

Unappointed member

If the Board of Appeal included a person not appointed as a member of the Boards of Appeal a petition is allowable. 

Fundamental violation of the right to be heard

The EPC has an absolute requirement that decisions can only be taken based on grounds or evidence on which the parties have had the right to comment.  A perceived failure to meet this requirement is the most common ground for petitions.  To be successful the petitioner must show they were not aware of the relevant grounds or evidence, and had no chance to comment, as well as demonstrating that the decision was dependent on the unknown grounds or evidence.  That is, the failure must be linked to the adverse decision, and the inability to comment on unrelated materials is not a fundamental violation. 

Failure to hold oral proceedings or taking a decision without considering all relevant requests

These two options are set out in the Implementing Regulations as further fundamental defects which can be reviewed.  Where a party has requested oral proceedings that request must be respected by the Boards of Appeal before an adverse decision can be taken, otherwise there is a fundamental violation of the right to be heard.  Similarly if a request that is relevant to the decision is not considered the party has a right to review. 

Criminal Act

Where a criminal act has an impact on the decision a review can be conducted.  The Implementing Regulations state that a petition under this heading is admissible if a competent court has made a final finding that the relevant criminal act occurred (albeit a conviction is not necessary).  Acts such as forgery of documents (e.g. prior art), bribery, or perjury seem the most likely acts relevant to this section. We are not aware of any successful petitions under this heading. 

This article concludes the series covering oppositions and some related parts of EPO practice.  We will now take a break for the summer, after which we'll return to look at further areas; if anyone has any particular requests, please let us know. 

This article is a part of our EPO Practice and Peculiarities series. Click here to explore