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21 November 2011

A Second Petition for Review Granted by the EPO

Bénédicte Moulin

The Enlarged Board of Appeal of the EPO has granted on 14 November its second petition for review since the scheme was made available under the EPC 2000. In this petition R 3/10, the patentee and opponents had discussed novelty of EP1284604 during oral proceedings for appeal T-123/09. The Board of Appeal then explained that they were to decide on 'patentability' and made a decision on both novelty and inventive step. Whilst the Board of Appeal believed that it had been made clear to the parties that both novelty and inventive step were to be discussed and decided on, the Enlarged Board of Appeal held that the patentee had no reason to believe that the Board's decision would address more than had been previously discussed orally, ie, novelty.

It thus concluded that, even though the Board of Appeal had acted in good faith, there had been a substantial procedural violation because the patentee had been deprived of its right to be heard on the issue of inventive step.

Since petitions for review have been introduced, only one petition had previously been successful (R 7/09) for about 45 unsuccessful petitions.

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