Recently, when I gave a talk on EPO case law, a patent attorney of some considerable experience asked me whether or not petitions for review have been a success. She observed, as have others, that on the one hand the first successful petition (R7/09) was a prime example of the sort of case petitions were designed to meet – something goes wrong and a party is denied its say as a result. In that case, the patentee who was respondent never received the grounds of appeal, the board of appeal didn’t know he hadn’t so the case went forward without him.
On the other hand, is the reason so many petitions fail that, although they should be confined to procedural errors, unsuccessful parties are dressing up “ordinary” results as procedural errors just to try and restart their cases?
I’m sure that does happen a lot but I’m often surprised not only how bad the disguise is but also how often petitions are filed which almost repeat earlier unsuccessful petitions.
The case law is not voluminous, since there have only been just over a hundred petitions so far. Yet it seems that many of those who draft and file petitions do not take the time to read it. What is your experience of this?