G 3/08 - Opinion

Opinion

The reasons for the opinion first address the admissibility of the referral. After considering that the President of the EPO had not forfeited her right to a referral because the preceding President, Alain Pompidou, had declined in 2007 to refer questions to the Enlarged Board Appeal (when suggested to do so by British judge Lord Justice Jacob), the Board considered the referred questions to be undoubtedly of fundamental importance under Article 112(1)(b) EPC. The Board goes on by writing that the president's right of referral to the Enlarged Board does not extend to means of replacing Board of Appeal rulings with the decision of a putatively higher instance, as Article 112 EPC / Article 112a EPC does not constitute a further instance ranking above the Boards of Appeal within the EPC judicial system. According to the Board, " are ... assigned interpretative supremacy with regard to the EPC in terms of its scope of application". The notion of "legal development" and its normal character are also addressed, in the context of the reference to "different decisions" in Article 112(1)(b) EPC, a requirement considered crucial for the referral to be admissible. The Board then concludes its "fundamental considerations on the interpretation of Article 112(1)(b) EPC" (before considering the questions of the referral themselves) as follows:

"the President has no right of referral under Article 112(1)(b) EPC simply in order to intervene, on whatever grounds, in mere legal development if on an interpretation of the notion of "different decisions" in the sense of conflicting decisions there is no need for correction to establish legal certainty."