EPO case law: Legal Effect of Decisions of the Board of Appeal

Decisions of the BoA become legally binding as soon as issued ("res iudicata"); from this it follows that the rights of the parties and of the persons which are in a legal relationship with the parties with regard to a matter on which a court has made a legally binding decision have been finally determined. Such a final verdict of a competent court thus precludes, as an absolute barrier, a further action or a new decision concerning the same claim, request or cause of action and the same parties or persons in a legal relationship with them. An appeal under Art 106 para. 1 EPC against a final decision of BoA is consequently excluded and must therefore be dismissed as inadmissible. The above-mentioned legally binding effect binds the administrative authority (compare Art 111 para 2 EPC) in a subsequent examination procedure for the same application as well as the BoA in any subsequent examination appeal proceedings. On the other hand, the binding effect of a decision in the examination appeal proceedings does not apply to any subsequent opposition and opposition appeal proceedings, since opposition proceedings are independent and different (particularly with regard to the different parties involved) from examination proceedings and are characterised by the nature of public interest. (EPO BoA 5 December 2017, T 1666/14).