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Journal of Intellectual Property Law & Practice Advance Access originally published online on September 2, 2008
Journal of Intellectual Property Law & Practice 2008 3(11):708-717; doi:10.1093/jiplp/jpn163
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© The Author (2008). Published by Oxford University Press. All rights reserved

Case law of the EPO boards of appeal in 2007

Gillian Davies*
Legal context: The article reviews significant decisions handed down by the boards of appeal of the European Patent Office (EPO) in 2007, concentrating on decisions of the Enlarged Board and the boards of appeal issued in 2007 and published or to be published in the OJ EPO.

Key points: The article discusses two important decisions of the EBA on the subject of divisional applications (Article 76 EPC and R. 25 EPC) and three new referrals to the EBA concerning (i) exclusion from patentability under R. 23d(c) in conjunction with Article 53a EPC; (ii) exclusion under Article 52(4) EPC; and (iii) exception to patentability under Article 53(b) EPC. It covers also decisions of the legal board on the application of EPC 2000 and divisional applications and decisions of technical boards of appeal on exclusions from patentability (Articles 52 (2)(3) and (4) EPC), admissibility of amendments, re-establishment of rights (Article 122 EPC), late submission of facts, and arguments, approval of the text by the applicant in proceedings before the EPO and transfer of opponent status in opposition procedure.

Practical significance: The article provides an overview of the 2007 case law of the boards of appeal which is particularly useful since many of the decisions discussed have not yet been published in the OJ EPO.

Key Words: Each year the boards of appeal of the European Patent Office hand down large numbers of decisions in relation to disputed patentability of inventions and the legal mechanisms by which those disputes may legitimately be resolved. • The number of decisions generated each year is so vast that it is not feasible even for the interested and conscientious patent practitioner to read them all. • This article provides an overview of evolving European Patent Office law, based on decisions of the Enlarged Board of Appeal and the boards of appeal in several key areas during 2007.

Correspondence: * Gillian Davies, DL, PhD, is a barrister in practice at Hogarth Chambers in London and Visiting Professor at Queen Mary Intellectual Property Research Institute (QMIPRI), University of London. She is a former Chairman of a Technical Board of Appeal and Permanent Member of the Enlarged Board of Appeal at the EPO. Email: gdavies{at}hogarthchambers.com


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