Technical Boards of Appeal of the EPO – Update
The Technical Boards of Appeal, which handle appeals from first instance decisions of the examination and opposition divisions of the EPO, received and settled a record number of appeals in 2019.
From 2015 to 2019, increasing numbers of appeals were filed year by year. The number of appeals settled caught up with the number filed in 2019 but lagged behind in earlier years. As a result, the number of appeals pending at the end of 2019 (ca. 9200) was just over 15% higher than the number of appeals pending at the end of 2015 (ca. 7850).
Although the numbers of ex parte (examination) appeals filed each year increased from 2015 to 2019, the numbers of appeals settled kept up. In contrast, the numbers of inter partes (opposition) appeals settled did not keep up with the generally increasing numbers of appeals being filed, at least until 2019. This means that the increase in the number of appeals pending at the end of 2019 is entirely due to an increase in pending inter partes (opposition) appeals.
The increases in appeals filed since 2015 may be a reflection of (and in part reflected in) the increased numbers of European applications refused and European patents opposed.
Appeals may be settled by a decision on their merits or in other ways. For instance, they may fail as a result of a decision not on the merits of the appeal but on some more-or-less formal matter unrelated to the merits of the case (e.g. if the appellant was not entitled to appeal; payment of a reduced fee for appeal when the appellant was not entitled to a reduction; etc.). Appeals may also be settled without a decision, typically when appellants withdraw their appeals. This may happen after a Board of Appeal has issued a communication, perhaps with a preliminary opinion, on the merits of the appeal which is not positive. All appeals settled without decisions fail: the first instance decisions stand.
In recent times, only a minority of ex parte (examination) appeals have been settled by a decisions on the merits, which most often resulted in the appeals being dismissed, the first instance decisions standing unrevised. Some decisions were for referral back to the first instance: objections which brought about the appeals are overcome but other issues remain to be addressed and require "two- instance" consideration. Some decisions grant patents in one form or another, which may not be in the form initially sought.
In general, a majority of inter partes (opposition) appeals have been settled by decisions on the merits. The most likely outcome has been dismissal of the appeals, the first instance decisions standing unrevised. However, first instance outcomes have most often been revised, with the revised outcomes ranging from revocation of patents to maintenance of patents as granted, but also including less extreme revisions such as maintenance of patents in some newly amended form and outcomes in which the cases are referred back to the first instance (objections which brought about the appeals are overcome but other issues remain to be addressed and require "two-instance" consideration). Any revision could be seen as at least a partial success of the appeal for the appellant.
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