Changes in force on 1 January 2024
As of 1 January 2024, the Rules of Procedure of the Boards of Appeal (RPBA) have been amended in two subtle but important ways:
Firstly, Article 13(2) RPBA has been updated to adjust the trigger date after which amendments to a case are “not to be taken into account unless there are exceptional circumstances”. This important date is now triggered by issuance of the Board’s Preliminary Opinion (under Art 15(1)) rather than the summons to oral proceedings. The latter can often be issued well before the Preliminary Opinion, so this change effectively delays the trigger date in most scenarios. Of course, it remains vital that a party presents its full case at the beginning of the appeal process because any party needing to submit amendments under Art 13(2) RPBA will continue to face an uphill battle.
Secondly, Article 15(1) has been amended to prohibit the issue of a summons to oral proceedings until 1 month has elapsed after the parties’ initial appeal submissions have been filed. (Previously, the period was 2 months, but was not mandatory on the Boards). Interestingly, the EPO have highlighted this as the “most important amendment” to the Rules of Procedure in their drive to improve the timeliness of the appeal procedure, but it will be interesting to see how much impact this will have in practice.
Further details of the changes can be found on the EPO website here.
Changes NOT coming into force on 1 January 2024
In what many see as a positive outcome, the Boards’ proposal for shortening of the time period for replying to a grounds of appeal under Article 12(1)(c) RPBA (from 4 months to 2 months) has been dropped, following many negative responses to the consultation exercise. However, the Boards have stated that the proposed change will be reconsidered once the impact of the above-mentioned changes can be evaluated.
The background to all these changes is a target for the EPO Boards of Appeal to settle 90% of cases within 24 months by the end of 2025. However, there were concerns that the proposed change would have negatively impacted parties in the appeal process, without necessarily improving efficiency.