Key points
- Article 112a(1) provides that "Any party to appeal proceedings adversely affected by the decision of the Board of Appeal may file a petition for review of the decision by the Enlarged Board of Appeal."
- The party (EQE candidate) was adversely affected by a decision of the Disciplinary Board of Appeal and filed a petition for review. What could go wrong?
- Well, it turns out that the DBA is not a Board of Appeal (in the meaning of Art. 112a EPC).
- The answer was, for the larger part, already given in D3/20 and D5/82 (point 5 of the reasons): the DBA is not a Board of Appeal in the sense of Article 112 (referral of questions to the EBA). The present decision extends that to Art. 112a.
- The interested reader is referred to the Board's reasoning in the decision. The link can be found after the jump.
- The DBA and the EQE were set up simultaneously on 21.12.1977. The first EQE regulation can be found in OJ 1978 p.101. The possibility of appeal to the DBA was included from the outset. The first Regulation on Discipline can be found in OJ 1978 p.91.
- Art. 22(3) of the first Regulation on Discipline specifies that Art. 111(1) and (2), first sentence, apply "mutatis mutandis", which indicates that the DBA was not a Board of Appeal: otherwise Art. 111 EPC would have applied directly. This is confirmed by Art. 25 of that Regulation: "1) Article 113, paragraph 1, Article 114, Article 117 with the exception of paragraph 2, Article 125 and Article 131, of the European Patent Convention shall apply mutatis mutandis to proceedings before the Disciplinary Bodies."
- A bit of history of the EQE: "the appellant emphasised that the only possible explanation for the bad results of the first Qualifying Examination [in 1979] as a whole, which 64% of candidates failed, was the restrictive approach and severity of the examiners ..." (D5/82)
EPO
The link to the decision can be found after the jump.
When we are at it, the (rumoured) upcoming revision of the disciplinary system could be used for a change of the name of the DBA. Perhaps, the DBA could be split in an appeal body for EQE appeals (steady yearly batch of cases, strict timelines, only rarely a need for factual investigations) and an appeal body for disciplinary cases (infrequent cases, sometimes messy factual situations, no need to dispose of the case before the next exam). Each appeal body could have its own rules of procedures (the date for hearings for EQE appeals can almost be reserved in advance, for instance).
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