Boards of Appeal and UPC: Shared Responsibility and Timely Proceedings

UPC AND BOARDS OF APPEAL: TWO COURTS, ONE SHARED RESPONSIBILITY CARL JOSEFSSON | PRESIDENT OF THE BOARDS OF APPEAL | 04-05 APRIL 2024 epo.org/appeals

OVERVIEW epo.org/appeals OVERVIEW Boards of Appeal and its judicial function Patent validity: overlapping and concurrent jurisdiction Accelerated proceedings at the EPO and Boards of Appeal Boards of Appeal timeliness objectives EPC harmonisation philosophy 2

BOA AND ITS JUDICIAL FUNCTION epo.org/appeals BOARDS OF APPEAL AND ITS JUDICIAL FUNCTION First and final judicial instance in procedures before the EPO very exceptionally are subject to review by Enlarged Board of Appeal (fundamental procedural defect) Provide independent judicial review of decisions taken by the EPO's administrative departments in the patent granting procedure European and Unitary Patents may be subject to validity proceedings: in parallel to or after proceedings before the EPO (incl. appeal) before competent national courts, in the EPC contracting states and/or the UPC 3

VALIDITY AND JURISDICTION epo.org/appeals OVERLAPPING AND CONCURRENT JURISDICTION Patentgrant EPO / Boards of Appeal proceedings accelerate Revocation UPC / national court proceedings stay 4

ACCELERATION OF PROCEEDINGS epo.org/appeals ACCELERATION OF PROCEEDINGS EPO AND BOA Opposition proceedings before the EPO Appeal proceedings before the BoA Parties may request accelerated proceedings where infringement action is pending if granted, the EPO endeavours to issue the next procedural step at the earliest possible opportunity Boards may give a case priority over others and adopt a strict timeframe, by e.g. early summoning to OP, keeping time limits and time scales to the minimum, etc. Discretion of the board to accelerate proceedings ex officio, in particular where infringement or revocation proceedings are pending EPO will also accelerate the processing of the opposition if it is informed by the UPC that infringement actions are pending (see Art. 10 RPBA and Notice from the Boards of Appeal on accelerating (see OJ EPO 2023, Suppl. Publ. 3, p. 9) proceedings, 19 January 2024) 5

epo.org/appeals ACCELERATION OF PROCEEDINGS Boards of Appeal UPC Art. 10(4) RPBA 2020: If a court [ ] requests acceleration of the appeal proceedings, the Board shall inform the court [ ] and the parties whether the request has been granted and when oral proceedings, if foreseen, are likely to take place. Rule 298 RoP: The Court may of its own motion or at the request of a party request that [ ] proceedings [ ] before the European Patent Office be accelerated [ ]. Art. 10(5) RPBA 2020: The Board may accelerate the appeal proceedings of its own motion. Art. 10(6) RPBA 2020: If the Board accelerates the appeal proceedings, it shall give the appeal priority over other appeals. The Board may adopt a strict framework for the proceedings. UPC-EPO Agreement on data exchange between the registers 6

BOA TIMELINESS OBJECTIVES epo.org/appeals NEW OBJECTIVES FROM 2024 Timeframe Forecast Objective Till end 2024 No more than 10% cases older than 27 months No more than 10% cases older than 24 months Till end 2025 Further amendments to the RPBA entered into force on 1st January 2024 7

EPC HARMONISATION PHILOSOPHY epo.org/appeals EPC HARMONISATION PHILOSOPHY Publications Procedural mechanisms Judicial exchange 12 Point-Text Exchange fora Level 1 External members of the EBA Stay of proceedings Acceleration of proceedings Harmonisation Development of case law Level 1 12 Point-Text Mutual consideration Persuasiveness 8

epo.org/appeals Thank you very much for your attention! Carl Josefsson President of the Boards of Appeal 9