歐洲擴大上訴委員會（EPC 112, 112a）

筆記

EPC Article 112 Decision or opinion of the Enlarged Board of Appeal

歐洲擴大上訴委員會（Enlarged Board of Appeal）為歐洲專利局訴願委員會（board of appeal）的上訴單位，當專利權人或是任一方對於歐洲專利局訴願委員會的決定不服時，可以上訴到擴大上訴委員會，擴大上訴委員會可重開訴願程序。

歐洲專利訴願程序（Appeal Procedure） 可參閱：
http://enpan.blogspot.tw/2011/09/appeal-procedure.html

歐洲擴大上訴委員會作出的決定的效果可以參考 EPC 112
(1) 明文規定訴願委員會（Board of Appeal）應參考擴大上訴委員會（Enlarged Board of Appeal）提出的問題與決定，訴願委員會應據此作出最終決定，包括同意或不同意擴大上訴委員會的意見。
再者，當兩個訴願/擴大上訴委員會對特定議題意見不一時，歐洲專利局主席可以據此作為回應。
(2)從訴願委員會上訴到擴大上訴委員會的訴願方應為同一個。
(3)擴大上訴委員會的決定應對訴願委員會的決定有約束力。

EPC 112a規範如何對歐洲擴大上訴委員會提出請願（petition）
(1)當訴願方不服訴願委員會決定時，可以提出請願。
(2)提出請願的理由包括：
(a)委員會成員為(或曾經)利害關係人
(b)委員會成員改變
(c)決定無理由 a fundamental violation of Article 113 occurred;(d)程序瑕疵
(e)規定有違法
(3)請願不得懸而未決(4)請願應有理由，且應於委員會作出決定後/違法情事發生後兩個月內提出
(5)若擴大上訴委員會同意請願內容，應重新開啟訴願程序
(6)使用訴願期間的發明不用付錢

[英文]
Article 112 Decision or opinion of the Enlarged Board of Appeal
(1) In order to ensure uniform application of the law, or if a point of law of fundamental importance arises:
(a) the Board of Appeal shall, during proceedings on a case and either of its own motion or following a request from a party to the appeal, refer any question to the Enlarged Board of Appeal if it considers that a decision is required for the above purposes. If the Board of Appeal rejects the request, it shall give the reasons in its final decision;
(b) the President of the European Patent Office may refer a point of law to the Enlarged Board of Appeal where two Boards of Appeal have given different decisions on that question.
(2) In the cases referred to in paragraph 1(a) the parties to the appeal proceedings shall be parties to the proceedings before the Enlarged Board of Appeal.
(3) The decision of the Enlarged Board of Appeal referred to in paragraph 1(a) shall be binding on the Board of Appeal in respect of the appeal in question.

Article 112a Petition for review by the Enlarged Board of Appeal
(1) 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.
(2) The petition may only be filed on the grounds that:
(a) a member of the Board of Appeal took part in the decision in breach of Article 24, paragraph 1, or despite being excluded pursuant to a decision under Article 24, paragraph 4;
(b) the Board of Appeal included a person not appointed as a member of the Boards of Appeal;
(c) a fundamental violation of Article 113 occurred;
(d) any other fundamental procedural defect defined in the Implementing Regulations occurred in the appeal proceedings; or
(e) a criminal act established under the conditions laid down in the Implementing Regulations may have had an impact on the decision.
(3) The petition for review shall not have suspensive effect.
(4) The petition for review shall be filed in a reasoned statement, in accordance with the Implementing Regulations. If based on paragraph 2(a) to (d), the petition shall be filed within two months of notification of the decision of the Board of Appeal. If based on paragraph 2(e), the petition shall be filed within two months of the date on which the criminal act has been established and in any event no later than five years from notification of the decision of the Board of Appeal. The petition shall not be deemed to have been filed until after the prescribed fee has been paid.
(5) The Enlarged Board of Appeal shall examine the petition for review in accordance with the Implementing Regulations. If the petition is allowable, the Enlarged Board of Appeal shall set aside the decision and shall re-open proceedings before the Boards of Appeal in accordance with the Implementing Regulations.
(6) Any person who, in a designated Contracting State, has in good faith used or made effective and serious preparations for using an invention which is the subject of a published European patent application or a European patent in the period between the decision of the Board of Appeal and publication in the European Patent Bulletin of the mention of the
decision of the Enlarged Board of Appeal on the petition, may without payment continue such use in the course of his business or for the needs thereof.

Ron