Saturday, 29 June 2013

Looking Back On 2012 – Final Remarks

Here are some final bits and pieces regarding the activity of the Boards of Appeal in 2012, completing my first post on examination appeals (here) and the second one on opposition appeals (here).

I shall give these elements in alphabetic order:


A reader asked me whether I had information on the average delay between the first and second instance decisions. As a matter of fact, I had not extracted the date of the first instance decision, and I found the idea of looking them up (for more than 1400 decisions) disheartening. So I developed a small algorithm (based on a reasonable subset) that allows me to compute the date of decision from the appeal number allocated to it (taking into account the particularity of examination appeals, where the allocation occurs at a later date, because the first instance will check whether interlocutory revision can be granted). I have checked the algorithm on a considerable number of cases and found it to work quite well: the computed dates appear to be accurate within two to four weeks, which is sufficient for my purposes.

Here is what I found; the graph shows the number of decisions taken in 2012 as a function of the number of years that separate the first and second instance decision, for both examination and opposition appeals.

I do not think that calculating an average delay for examination appeals makes much sense, because there is a broad spread between 1 and 5 years having its maximum close to 4 years. I obtain a more Gaussian shape for opposition appeals, centered about almost 3 years.

Anyway, three years appears to be the time appellants will have to wait on average for an appeal decision. For some cases, the treatment is much faster; also, there are almost no cases where the appeal decision is taken more than six years after the first instance decision.

As of now, I do extract the date of the first instance decision, so if this blog still exists in a year’s time, I should be able to provide even more precise data for 2013.

Disciplinary Board

All 2012 decisions were published after my first two posts, which explains that they are absent from the overall graph presented in my first post. There appear to have been ten decisions in 2012, all of which related to the EQE. Five of them were filed by would-be candidates who had not been admitted, another five by unsuccessful candidates. None of the appeals was successful.

Enlarged Board decisions (pursuant to A 112)

There was only one decision: G 1/10 dealing with corrections under R 140.

Legal Board of Appeal

There were 11 decisions in 2012, dealing with a great variety of legal questions.

Petitions for review

There appear to have been 16 decisions in 2012:
  • 1 petition has been successful (R 21/11);
  • 2 petitions have overcome the first hurdle but were then dismissed as being unallowable (R 9/11, R 13/11);
  • 3 petitions have been dismissed as clearly inadmissible (R 14/11, R 3/12, R 5/12);
  • 2 petitions have been dismissed as being partly clearly inadmissible and partly clearly unallowable (R 17/11, R 4/12);
  • 7 petitions were found to be clearly unallowable (R 4/11, R 16/11, R 18/11, R 19/11, R 20/11, R 2/12, R 13/12); and 
  • in one interlocutory decision the Enlarged Board rejected an objection of partiality (R 2/12).

There was one case where the petition was deemed not to have been filed (R 12/11) and no decision was taken.

In four cases the decision was said to have been unanimous.


The dates of the decisions mostly correspond to the dates of oral proceedings (OPs) before the Board. It is therefore possible to study the seasonality of OPs:

There was no pronounced summer break; July 2012 was even one of the most active months of the year and even August was far from dead. May was the most heavily burdened month. The last two facts alone would provide proof to an alien studying the EPO that the Boards of appeal are not situated in France.

Weekly Activity

OPs appear to be held mostly on Tuesdays and Thursdays (assuming that most OPs do not exceed one day).

NB: I found one decision taken on a Sunday (T 1309/11), but there is little if any doubt that this is an error. 


As June comes to its end, let me add my usual end-of-quarter statistics. The productivity of DG3 during the first two quarters of 2013 was higher than in 2011 and 2012 and comparable to what we had in 2008 to 2010:

The publication of the decisions has finally become much smoother than what we had seen in previous years, as the comparison between quarter 2 of 2012 (left) and quarter 2 of 2013 (right) shows. What is plotted here is the number of decisions published on the DG3 website as a function of the date of publication.