R 0007/17 - Petition for review

Key points

• This petition for review was filed 14.09.2017. The written decision was issued 16.12.2019. The petition for review "is unanimously rejected as clearly unallowable".
• To cite OJ 2007 SE 4 En p.130, “In the interest of a quick and effective screening of petitions for review which are clearly inadmissible or not allowable, special procedural provisions apply to the three-member panel []. The proceedings before this panel shall be as simple and short as possible.” “A quick screening procedure at the outset of review proceedings to sort out petitions which clearly cannot be successful is essential in order to avoid an inappropriate prolongation of legal uncertainty for third parties. It is also of great importance to counteract effectively intentional prolongation of proceedings by filing a petition for review.”
• I leave it to the judgement of the readers whether a two years procedure is a "quick" screening procedure. Let me observe that the application was filed in 2010, so that the "lifetime" of the patent was increased by roughly 30% by the petition for review procedure (from 7 to 9 years). Calculated from the grant of the patent in 2012, the increase was 40%.
• The decision contains a remark about the importance of the Technical Board asking for the parties' final requests: "When the chairman summarised the patent proprietor’s requests, not including auxiliary requests 5 to 8, he made clear that these requests did not form part of the appeal proceedings. The chairman then asked the parties if they had any further comments or requests. According to the minutes of the oral proceedings, there were none. At least at that time, the patent proprietor could have answered this question by filing additional auxiliary requests. It did not submit any." 

EPO R 0007/17 - link

Summary of Facts and Submissions

I. The petition for review concerns decision T 0360/15 of Technical Board of Appeal 3.2.01 of 17 May 2017 and despatched on 5 July 2017, revoking European patent No. 2298640.

II. The petition for review was filed by the patent proprietor (hereinafter “the petitioner”) on 14 September 2017. The corresponding fee was paid on the same day.

III. The petition is based on the grounds under Article 112a(2)(c) EPC that a fundamental violation of Article 113 EPC occurred in the appeal proceedings.

IV. In a communication accompanying the summons to oral proceedings dated 8 March 2019, the Enlarged Board expressed its provisional and non-binding opinion that no fundamental violation of the right to be heard occurred and that it intended to consider the petition for review at least in part clearly inadmissible and in any case clearly unallowable.

V. Oral proceedings were held on 13 June 2019.

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