Saturday, 23 January 2010

R 5/08 – On the Role of Requests in Petitions for Review

The petition as filed identified two of the grounds for petition mentioned in A ll2a(2) and R 104, namely a fundamental violation of A 113 EPC and deciding on an appeal without deciding on a request relevant to that decision (A ll2a(2)(c) and (d) respectively).

The Enlarged Board’s communication of 26 August 2008 indicated that it considered the latter ground unallowable since it appeared that all relevant requests had in fact been considered. […] The petitioner confirmed in its letter of 5 January 2009 that it did not rely on that ground. However, it remains the fact that on any view the petition identified one of the specified grounds for petition, namely that in A ll2a(2)(c). [5]

The respondent argued the petition was inadmissible for another formal reason, namely that the requests in the petition were not pursued but were replaced by other requests presented at the oral proceedings on 1 October 2008 and that, being more than two months after the notification of the decisions complained of, a new and different petition was filed which was invalid because out of time.

The Enlarged Board does not accept that argument and agrees with the petitioner that R 107 (which specifies the necessary contents of a petition) does not specifically require requests. The only requirement which can be derived from the wording of R 107(2) is that the petition must make clear that the petitioner wants the decision of the Board of Appeal to be set aside. In the present case that request was expressly made in the petition. [6]

The relief which the Enlarged Board can grant if a petition is allowed is in any event specified precisely by the legislation: A 112a(5) and R 108(3) provide that, if a petition is allowable, the Enlarged Board shall set aside the impugned decision and “reopen” (A ll2a(5)) or “order the re-opening” (R 108(3)) of the proceedings before the Board of Appeal. R 108(3) also empowers the Enlarged Board to order replacement of members of the Board of Appeal who participated in the impugned decision. [7]

With the exception of that last measure which is discretionary, the outcome of a successful petition is therefore prescribed by legislation. In those circumstances, the role of requests in petition proceedings is necessarily limited and the Enlarged Board cannot agree with the respondent that, by merely bringing requests it had not been obliged to specify into conformity with the legislative provisions, the petitioner has filed a new and invalid petition out of time. 

To download this decision, click here.