Reformatio in peius
Prohibition of reformatio in peius at the European Patent Office
Under the case law of the Boards of Appeal of the European Patent Office (EPO), a Board cannot put a sole appellant in a worse position than if he had not appealed the first instance decision. Hence in relation to appeals, the term "prohibition of reformatio in peius" essentially means that a person should not be placed in a worse position as a result of filing an appeal. Thus, in general, EPO Boards of Appeal are prevented in opposition appeal proceedings from going beyond the request of a sole appellant to put it in a worse position than it was before it appealed. The central case detailing this principle is G 4/93 consolidated with G 9/92.
This principle however does not hold without exceptions, as laid out for example in decision G 1/99. In this case, an error of judgement had been made by an Opposition Division in allowing the addition of a limiting feature going beyond the content of the application as filed (contrary to Article 123(2) EPC). The Board allowed the patent proprietor to file requests in order to overcome this deficiency, since
(...) it would be inequitable for the patent proprietor not to be given a fair opportunity to mitigate the consequences of errors of judgement made by the Opposition Division.
Still under the case law of the boards of appeal of the EPO, the doctrine of reformatio in peius does not however apply separately to each point or issue decided, or to the reasoning leading to the impugned decision.
- Legal Research Service for the Boards of Appeal, European Patent Office, Case Law of the Boards of Appeal of the EPO (8th edition, July 2016), iv.e.3.1 "Binding effect of requests - no reformatio in peius".
- Decision of the Enlarged Board of Appeal dated 2 April 2001, G 1/99, reasons 14.
- "According to the established case law of the boards of appeal, the doctrine of reformatio in peius does not apply separately to each point or issue decided, or to the reasoning leading to the impugned decision (see T 149/02 of 25 July 2003, point 3.2.1)." in EPO Board of Appeal decision T 0384/08 of 26 June 2009, Reasons 2.