tag:blogger.com,1999:blog-2352189175211648260.post7477772981433984056..comments2023-10-24T14:45:41.342+02:00Comments on K’s Law: G 1/07 – Administrators Going Ultra Vires?orhttp://www.blogger.com/profile/07992102028406713066noreply@blogger.comBlogger2125tag:blogger.com,1999:blog-2352189175211648260.post-61234745278935133392010-03-17T10:38:06.977+01:002010-03-17T10:38:06.977+01:00Thanks for your interesting comment!Thanks for your interesting comment!Oliverhttps://www.blogger.com/profile/14069112323977591767noreply@blogger.comtag:blogger.com,1999:blog-2352189175211648260.post-70396427227397303182010-03-17T00:58:35.010+01:002010-03-17T00:58:35.010+01:00I made the anonymous comment to the IPKat post. Af...I made the anonymous comment to the IPKat post. After comparing with the German and French language versions of Art. 112 EPC 1973, I agree that the "alignment" cannot really be criticised.<br /><br />If the AC had acted ultra vires, I suppose a Board of Appeal could (and probably should, i.e. both on request and of its own motion) declare so whenever the legality of the AC's decision would affect the outcome of an appeal (or refer such a question to the EBA, which is probably what would happen in practice).<br /><br />If the AC had acted ultra vires, its decision would probably be (partially) void ab initio. That would mean the text of the EPC provision in question was never amended (at least not by the AC, it might have been amended by the Diplomatic Conference).<br /><br />If I'm correct, then a legal remedy does not exist, but is (theoretically) not necessary either. Affected users should simply argue before the EPO that the amendment is void, so that the old version of the provision should be applied. Of course, the lower instances of the EPO are unlikely to agree. Their incorrect application of the EPC can be appealed in the normal way.<br /><br />Decision G 5/88 might be regarded as an example of what would happen. Although that decision concerned a decision by the President, I would think the same principle applies to a decision by the AC. G 5/88 seems to confirm that the illegal decision is void (in so far as it was taken ultra vires), but also explains that the principle of good faith and the protection of legitimate expectations play a role.Anonymousnoreply@blogger.com