The EPO provides Applicants, Patentees, and Opponents with the opportunity to appeal decisions of the Examining Division or the Opposition Division following adverse decisions.
In recent years, the Case Law of the Boards of Appeal has developed in relation to the ability of an Appellant to present new arguments, objections, evidence, and amendments during appeal proceedings. Whilst the practice of the Boards can vary significantly in this regard, recently there has been a general trend towards a more restrictive procedure.
The Rules of Procedure of The Boards of Appeal define which aspects of the Appellants case may be filed on appeal as of right, and which are subject to the discretion of the Board.
The EPO has launched a consultation on the Revision of the Rules of Procedure of The Boards of Appeal, including a draft set of updated rules. Notably, the draft updated rules show that there is an intention to codify the stricter aspects of the Case Law regarding the admissibility of new arguments, objections, evidence, and amendments. It is therefore likely that in future Appellants will face a more restrictive appeal system in this respect.
As a result, the need for Applicants, Patentees, and Opponents to present a full and exhaustive case before the Examining Division or Opposition Division is likely to become even more important.