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Revised Rules of Procedure of the Boards of Appeal

The long-term goal of the Boards of Appeal is to reduce the number of pending cases to less than 7,000 by 2023, although progress has been slow. Following a user consultation, the revised Rules of Procedure of the Boards of Appeal (RPBA) comes into force on 1 January 2020.

Articles 12 and 13 set out a new three-level approach by which the admissibility of changes to an appeal case will be curtailed as proceedings progress:

1) Outset of the appeal – If a party includes in their grounds of appeal issues that were not raised at first instance, the onus will now be on the party to justify this change. The Board of Appeal will have discretion over whether to admit a change, taking into account the complexity and suitability of the amendment for addressing the issues of the case.

2) Before the summons to oral proceedings is issued – a party must justify any changes they make to their appeal case as filed.

In order for changes to the case to be admitted, the party will have to show that:

a) the change prima facie overcomes the issues at hand, and

b) does not give rise to a new objection.

3) After the summons to oral proceedings – a change to the appeal case, in principle, shall not be taken into account, except in exceptional circumstances.

The revised Rules of Procedure of the Boards of Appeal clarifies that the oral proceedings minutes from the appealed decision are to be taken into account when determining what arguments, facts and evidence were presented in first instance.

For more information please visit the European Patent Office (EPO) website page on Rules of Procedure of the Boards of Appeal or call us on +44 (0)115 947 7977 to speak to one of our Chartered Patent Attorneys.

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