2 BvR 2480/10, 2 BvR 561/18, 2 BvR 786/15, 2 BvR 756/16, 2 BvR 421/13
By decision published on 12 January 2023, the Second Senate of the Supreme Court of Germany dismissed as inadmissible several constitutional complaints lodged by the appellants against decisions of the Technical Boards of Appeal and the Enlarged Board of Appeal of the European Patent Office.
The appellants essentially complained that the challenged decisions were based on a general and obvious lack of legal protection and violated fundamental procedural rights.
The Supreme Court found that the constitutional complaints were inadmissible. As far as the constitutional complaints are directly directed against the decisions of the Technical Boards of Appeal and the Enlarged Board of Appeal of the European Patent Office, they lack a proper subject-matter. Measures of supranational institutions are only examined by the Supreme Court insofar as they are either the basis for the actions of German state organs or trigger obligations of German constitutional organs to react. The constitutional complaints do not comply with this. On the merits, the complainants have not sufficiently substantiated that the minimum level of effective legal protection required under constitutional law would not be achieved by the organisation of the legal protection system of the European Patent Organisation, at least not after the structural reform of 2016.
Accordingly, it remains to be said that an attempt to defend oneself against decisions of the European Patent Office before national courts is still not promising.
Consequently, it remains of utmost importance to assert one’s interests directly in the proceedings before the European Patent Office. However, this requires profound expertise and experience in dealing with the European proceedings. MSP has been able to prove its expertise many times and successfully enforce the interests of our clients. If you have any questions, please do not hesitate to contact us:
Clemens Bauer Christian Kröner