The currently latest decision issued by the Enlarged Board of Appeal (EBA) is G 1/14, dated Nov. 19, 2015. The EBA focussed here the question of whether or not the referral fulfilled the “required” criterion of Art.112(1) EPC. According to Art.112(1), a Board of Appeal (BA) must “refer any question to the Enlarged Board of Appeal if it considers that a decision is required for the above purposes [ensure uniform application of the law, or if an important point of law arises]”. (Emphasis added.)

The EBA held that the BA must explain in its referral why a decision under Art.112(1) EPC is required and that in turn the EBA must examine whether the referral fulfills this requirement. The EBA then stated that the question in the present case is, “whether the referral concern a point of law actually arising, or rather is clearly the result of misapplying the law”. Deciding that the latter applies, the EBA dismissed the referral in a “summary review” as inadmissible.

As to the question referred in the referral, the EBA held that it is “not for the Enlarged Board to decide” the question referred. However, enough pointers are given in the decision as to leave no doubt what the correct answer is. Namely, UPS’s tracking information does not constitute advice of delivery within the meaning of R.126(1) EPC as in force before April 1, 2015.

G 1/14 is viewable and downloadable in the language of proceedings (German) and translations into the other two official EPO languages here. [Hyperlink is to the relevant section of the Official Journal November 2016 at EPO’s website ]