TBA -> EBA EPC 112!

[Erik Josefsson erikjosefsson@telia.com.sslug.dk]

"Contrary decisions of a Swedish court
 and a TBA of the EPO must be referred to the EBA"

"This is in Art. 112 EPC"

//Erik

On Wed, 2002-05-22 at 18:05, Hans Raible wrote:
> 
> 
> Erik Josefsson schrieb:
> 
> > Dear Mr Raible,
> >
> > Thank you for your answer. It confirmed what I before only had a vague
> > knowledge of.
> >
> > My question was perhaps unclear, but it came to my mind when reading a
> > paper from the now retired member of EPO, Eskil Persson:
> >
> > http://www.algonet.se/~domarefb/tidskr/tfsd9928.htm
> >
> > He mentions that the main function of the EBA is to solve basic
> > questions of interpretation of EPC.
> >
> > My question is: Under what circumstanses, if ever, is a TBA supposed to
> > forward such questions to the EBA?
> >
> > My spontaneous impression of T1002/92 is that the opposite opinions of
> > the TBA and Swedish courts would be a sufficient condition for the TBA
> > to ask EBA for opinion.
> >
> > But there is perhaps no regulation in EPC for forwarding a question of
> > interpretation from a TBA to the EBA or descriptions of requirements for
> > when when this should be done?
> >
> > Thank you for yor time.
> >
> > Kind regards.
> >
> > Erik Josefsson
> 
> Dear Mr. Josefsson,
> 
> You are absolutely correct: The EBA is the highest law-making body within
> the EPO system, and all basic questions should be referred to it.
> This is in Art. 112 EPC. Contrary decisions of a Swedish court and a TBA of
> the EPO must be referred to the EBA. However, in practice this does not
> happen. This is so because the EBA rarely confirms the decision below, and
> the judges of the TBAs think this reflects badly on their work. We have
> exactly the same problem in Germany where the Senates of the Federal Patent
> Court should refer basic questions to the BGH but do not do this. You might
> read a commentary on Art. 112 EPC.
> 
> With kind regards,
> Hans Raible
> 
>