Constitutional appeals against decisions of the EPO unsuccessful

The Federal Constitutional Court (BVerfG) has ruled on several appeals against decisions of the Enlarged Board of Appeal and the Technical Board of Appeal of the European Patent Office (2 BvR 2480/10) and rejected them as inadmissible. The actions were already inadmissible because there was no entitlement to appeal and no suitable subject matter of appeal (in this case, the decisions of the Enlarged Board of Appeal and the Technical Board of Appeal). At most, a German court could review whether the minimum level of protection of fundamental rights required by the Basic Law had been violated.

However, the Constitutional Court considers this minimum of fundamental rights protection to be fulfilled, at least after the structural reform of the EPO in 2016. It is noteworthy that the judgement addresses some aspects before the EPO's structural reform that were likely to raise doubts about the independence of decisions (e.g. disciplinary measures taken by the President against members of the major and technical boards of appeal or the fact that the Vice-President, as a member of the executive, could at the same time be a chamber member).

However, with the current assessment of the Federal Constitutional Court's protection of fundamental rights, actions against decisions as well as actions based on the Basic Law are likely to remain without prospect of success.

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