(a) two technically qualified members and one legally qualified member, when the decision concerns the refusal of a European patent application or the grant, limitation or revocation of a European patent, and was taken by an Examining Division consisting of less than four members;
(b) three technically and two legally qualified members, when the decision was taken by an Examining Division consisting of four members, or when the Board of Appeal considers that the nature of the appeal so requires;
(c) three legally qualified members in all other cases.
(4) For appeals from a decision of an Opposition Division, a Board of Appeal shall consist of:
(a) two technically qualified members and one legally qualified member, when the decision was taken by an Opposition Division consisting of three members;
(b) three technically and two legally qualified members, when the decision was taken by an Opposition Division consisting of four members, or when the Board of Appeal considers that the nature of the appeal so requires.
Article 22
Enlarged Board of Appeal
(1) The Enlarged Board of Appeal shall be responsible for:
(a) deciding on points of law referred to it by Boards of Appeal under Article 112;
(b) giving opinions on points of law referred to it by the President of the European Patent Office under Article 112;
(c) deciding on petitions for review of decisions of the Boards of Appeal under Article 112a.
(2) In proceedings under paragraph 1(a) and (b), the Enlarged Board of Appeal shall consist of five legally and two technically qualified members. In proceedings under paragraph 1(c), the Enlarged Board of Appeal shall consist of three or five members as laid down in the Implementing Regulations. In all proceedings, a legally qualified member shall be the Chairman.
Article 23
Independence of the members of the Boards
(1) The members of the Enlarged Board of Appeal and of the Boards of Appeal shall be appointed for a term of five years and may not be removed from office during this term, except if there are serious grounds for such removal and if the Administrative Council, on a proposal from the Enlarged Board of Appeal, takes a decision to this effect. Notwithstanding sentence 1, the term of office of members of the Boards shall end if they resign or are retired in accordance with the Service Regulations for permanent employees of the European Patent Office.
(2) The members of the Boards may not be members of the Receiving Section, Examining Divisions, Opposition Divisions or Legal Division.
(3) In their decisions the members of the Boards shall not be bound by any instructions and shall comply only with the provisions of this Convention.
(4) The Rules of Procedure of the Boards of Appeal and the Enlarged Board of Appeal shall be adopted in accordance with the Implementing Regulations. They shall be subject to the approval of the Administrative Council.
Article 24
Exclusion and objection
(1) Members of the Boards of Appeal or of the Enlarged Board of Appeal may not take part in a case in which they have any personal interest, or if they have previously been involved as representatives of one of the parties, or if they participated in the decision under appeal.
(2) If, for one of the reasons mentioned in paragraph 1, or for any other reason, a member of a Board of Appeal or of the Enlarged Board of Appeal considers that he should not take part in any appeal, he shall inform the Board accordingly.
(3) Members of a Board of Appeal or of the Enlarged Board of Appeal may be objected to by any party for one of the reasons mentioned in paragraph 1, or if suspected of partiality. An objection shall not be admissible if, while being aware of a reason for objection, the party has taken a procedural step. An objection may not be based upon the nationality of members.
(4) The Boards of Appeal and the Enlarged Board of Appeal shall decide as to the action to be taken in the cases specified in paragraphs 2 and 3, without the participation of the member concerned. For the purposes of taking this decision the member objected to shall be replaced by his alternate.
Article 25
Technical opinion
At the request of the competent national court hearing an infringement or revocation action, the European Patent Office shall be obliged, on payment of an appropriate fee, to give a technical opinion concerning the European patent which is the subject of the action. The Examining Division shall be responsible for issuing such opinions.
Chapter IV
THE ADMINISTRATIVE COUNCIL
Article 26
Membership
(1) The Administrative Council shall be composed of the Representatives and the alternate Representatives of the Contracting States. Each Contracting State shall be entitled to appoint one Representative and one alternate Representative to the Administrative Council.
(2) The members of the Administrative Council may, in accordance with the Rules of Procedure of the Administrative Council, be assisted by advisers or experts.
Article 27
Chairmanship
(1) The Administrative Council shall elect a Chairman and a Deputy Chairman from among the Representatives and alternate Representatives of the Contracting States. The Deputy Chairman shall ex officio replace the Chairman if he is prevented from carrying out his duties.
(2) The terms of office of the Chairman and the Deputy Chairman shall be three years. They may be re-elected.
Article 28
Board
(1) When there are at least eight Contracting States, the Administrative Council may set up a Board composed of five of its members.
(2) The Chairman and the Deputy Chairman of the Administrative Council shall be members of the Board ex officio; the other three members shall be elected by the Administrative Council.
(3) The term of office of the members elected by the Administrative Council shall be three years. They may not be re-elected.
(4) The Board shall perform the duties assigned to it by the Administrative Council in accordance with the Rules of Procedure.
Article 29
Meetings
(1) Meetings of the Administrative Council shall be convened by its Chairman.
(2) The President of the European Patent Office shall take part in the deliberations of the Administrative Council.
(3) The Administrative Council shall hold an ordinary meeting once each year. In addition, it shall meet on the initiative of its Chairman or at the request of one-third of the Contracting States.
(4) The deliberations of the Administrative Council shall be based on an agenda, and shall be held in accordance with its Rules of Procedure.
(5) The provisional agenda shall contain any question whose inclusion is requested by any Contracting State in accordance with the Rules of Procedure.
Article 30
Attendance of observers
(1) The World Intellectual Property Organization shall be represented at the meetings of the Administrative Council, in accordance with an agreement between the Organisation and the World Intellectual Property Organization.
(2) Other intergovernmental organisations entrusted with carrying out international procedures in the field of patents, with which the Organisation has concluded an agreement, shall be represented at the meetings of the Administrative Council, in accordance with such agreement.
(3) Any other intergovernmental and international non-governmental organisations carrying out an activity of interest to the Organisation may be invited by the Administrative Council to be represented at its meetings during any discussion of matters of mutual interest.
Article 31
Languages of the Administrative Council
(1) The languages used in the deliberations of the Administrative Council shall be English, French and German.
(2) Documents submitted to the Administrative Council, and the minutes of its deliberations, shall be drawn up in the three languages specified in paragraph 1.
Article 32
Staff, premises and equipment
The European Patent Office shall place at the disposal of the Administrative Council, and of any committee established by it, such staff, premises and equipment as may be necessary for the performance of their duties.
Article 33
Competence of the Administrative Council in certain cases
(1) The Administrative Council shall be competent to amend:
(a) the time limits laid down in this Convention;
(b) Parts II to VIII and Part X of this Convention, to bring them into line with an international treaty relating to patents or European Community legislation relating to patents;
(c) the Implementing Regulations.
(2) The Administrative Council shall be competent, in conformity with this Convention, to adopt or amend:
(a) the Financial Regulations;
(b) the Service Regulations for permanent employees and the conditions of employment of other employees of the European Patent Office, the salary scales of the said permanent and other employees, and also the nature of any supplementary benefits and the rules for granting them;
(c) the Pension Scheme Regulations and any appropriate increases in existing pensions to correspond to increases in salaries;
(d) the Rules relating to Fees;
(e) its Rules of Procedure.
(3) Notwithstanding Article 18, paragraph 2, the Administrative Council shall be competent to decide, in the light of experience, that in certain categories of cases Examining Divisions shall consist of one technically qualified examiner only. Such decision may be rescinded.
(4) The Administrative Council shall be competent to authorise the President of the European Patent Office to negotiate and, subject to its approval, to conclude agreements on behalf of the European Patent Organisation with States, with intergovernmental organisations and with documentation centres set up on the basis of agreements with such organisations.
(5) The Administrative Council may not take a decision under paragraph 1(b):
- concerning an international treaty, before its entry into force;
- concerning European Community legislation, before its entry into force or, where that legislation lays down a period for its implementation, before the expiry of that period.
Article 34
Voting rights
(1) The right to vote in the Administrative Council shall be restricted to the Contracting States.
(2) Each Contracting State shall have one vote, except where Article 36 applies.
Article 35
Voting rules
(1) The Administrative Council shall take its decisions, other than those referred to in paragraphs 2 and 3, by a simple majority of the Contracting States represented and voting.
(2) A majority of three-quarters of the votes of the Contracting States represented and voting shall be required for the decisions which the Administrative Council is empowered to take under Article 7, Article 11, paragraph 1, Article 33, paragraphs 1(a) and (c), and 2 to 4, Article 39, paragraph 1, Article 40, paragraphs 2 and 4, Article 46, Article 134a, Article 149a, paragraph 2, Article 152, Article 153, paragraph 7, Article 166 and Article 172.
(3) Unanimity of the Contracting States voting shall be required for the decisions which the Administrative Council is empowered to take under Article 33, paragraph 1(b). The Administrative Council shall take such decisions only if all the Contracting States are represented. A decision taken on the basis of Article 33, paragraph 1(b), shall not take effect if a Contracting State declares, within twelve months of the date of the decision, that it does not wish to be bound by that decision.
(4) Abstentions shall not be considered as votes.
Article 36
Weighting of votes
(1) In respect of the adoption or amendment of the Rules relating to Fees and, if the financial contribution to be made by the Contracting States would thereby be increased, the adoption of the budget of the Organisation and of any amending or supplementary budget, any Contracting State may require, following a first ballot in which each Contracting State shall have one vote, and whatever the result of this ballot, that a second ballot be taken immediately, in which votes shall be given to the States in accordance with paragraph 2. The decision shall be determined by the result of this second ballot.
(2) The number of votes that each Contracting State shall have in the second ballot shall be calculated as follows:
(a) the percentage obtained for each Contracting State in respect of the scale for the special financial contributions, pursuant to Article 40, paragraphs 3 and 4, shall be multiplied by the number of Contracting States and divided by five;
(b) the number of votes thus given shall be rounded upwards to the next whole number;
(c) five additional votes shall be added to this number;
(d) nevertheless, no Contracting State shall have more than 30 votes.
Chapter V
FINANCIAL PROVISIONS
Article 37
Budgetary funding
The budget of the Organisation shall be financed:
(a) by the Organisation’s own resources;
(b) by payments made by the Contracting States in respect of renewal fees for European patents levied in these States;
(c) where necessary, by special financial contributions made by the Contracting States;
(d) where appropriate, by the revenue provided for in Article 146;
(e) where appropriate, and for tangible assets only, by third-party borrowings secured on land or buildings;
(f) where appropriate, by third-party funding for specific projects.
Article 38
s own resources)~The Organisation’s own resources
The Organisation’s own resources shall comprise:
(a) all income from fees and other sources and also the reserves of the Organisation;
(b) the resources of the Pension Reserve Fund, which shall be treated as a special class of asset of the Organisation, designed to support the Organisation’s pension scheme by providing the appropriate reserves.
Article 39
Payments by the Contracting States in respect of renewal fees for European patents
(1) Each Contracting State shall pay to the Organisation in respect of each renewal fee received for a European patent in that State an amount equal to a proportion of that fee, to be fixed by the Administrative Council; the proportion shall not exceed 75% and shall be the same for all Contracting States. However, if the said proportion corresponds to an amount which is less than a uniform minimum amount fixed by the Administrative Council, the Contracting State shall pay that minimum to the Organisation.
(2) Each Contracting State shall communicate to the Organisation such information as the Administrative Council considers to be necessary to determine the amount of these payments.
(3) The due dates for these payments shall be determined by the Administrative Council.
(4) If a payment is not remitted fully by the due date, the Contracting State shall pay interest from the due date on the amount remaining unpaid.
Article 40
Level of fees and payments - Special financial contributions