First Reactions
Justine Pila argued that the basis for this decision is an interpretation of Article 112(1)(b) that is inconsistent with the principles of Articles 31 and 33 of the Vienna Convention, and that it offends the constitutional principles from which it was expressly derived. Namely she criticizes that the Boards’ approach
- suffers from the same faulty logic for which the EBA criticized the President’s referral,
- lacks doctrinal and theoretical coherence, and
- is incapable of producing legal certainty, either within the EPC or national (European) patent systems.
She concluded by criticizing the opinion, stating notably that "the EBA rendered a decision that is higher on democratic language than democratic content" and that "the only hope is for the European or national Legislatures to recognize that “judiciary-driven legal development” within the EPO has indeed met its limits".
Read more about this topic: G 3/08
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