Friday, November 11, 2016 R 1/15 - Petitioning for review of an insufficiently substantiated decision

In this petition for review, the petitioner (being the patent proprietor) asserts that the Board of Appeal relied in their decision on common general knowledge which the proprietor was unable to comment on. As such, the petitioner asserts that a fundamental violation of Article 113 occurred, which would be a valid ground for petition for review in accordance with Art. 112a(2c) EPC.

However, the Enlarged Board of Appeal concludes that the petition essentially is based on the assertion that the Board of Appeal insufficiently substantiated their decision, which is not one of the grounds for petition for review as enumerated by Art. 112a EPC. With reference to R 1/08 and R 22/10, the EBoA does acknowledge that while an insufficiently substantiated decision is in itself not a valid ground for petition for review, it may serve as  proof of the BoA not acknowledging a presentation of a party or taking such presentation into account in their decision-making process. The petitioner failed to assert such a violation. As such, the petition for review is deemed unallowable.