Appeal Procedure Before The European Patent Office - Binding Character of Decisions

Binding Character of Decisions

The legal system established under the EPC differs from a common law legal system in that " does not treat (...) established jurisprudence as binding." Under the EPC, there is no principle of binding case law. That is, the binding effect of board of appeal decisions is extremely limited.

A decision of a Board of Appeal is only binding on to the department whose decision was appealed, insofar as the facts are the same (if the case is remitted to the first instance of course). However, " the decision which was appealed emanated from the Receiving Section, the Examining Division shall similarly be bound by the ratio decidendi of the Board of Appeal." However, if "a Board consider it necessary to deviate from an interpretation or explanation of the given in an earlier decision of any Board, the grounds for this deviation shall be given, unless such grounds are in accordance with an earlier opinion or decision of the Enlarged Board of Appeal."

A decision of the Enlarged Board of Appeal (pursuant to Article 112(1)(a) EPC) is only binding on the Board of Appeal in respect of the appeal in question, i.e. on the Board of Appeal which referred the question to the Enlarged Board of Appeal. Furthermore, in the event that a Board considers it necessary to deviate from an opinion or decision of the Enlarged Board of Appeal, a question must be referred to the Enlarged Board of Appeal.

Outside the European Patent Office, the decisions of the Boards of Appeal are not strictly binding on national courts, but they certainly have a persuasive authority.