The Technical Board of Appeal of the EPO has referred a question to the Enlarged Board of Appeal to further clarify the status of a third party intervening during appeal proceedings.

According to Art. 105 EPC, any third party may intervene in opposition proceedings after the opposition period has expired, if the third party proves that (a) proceedings for infringement of the same patent have been instituted against him, or (b) following a request of the proprietor of the patent to cease alleged infringement, the third party has instituted proceedings for a ruling that he is not infringing the patent. An admissible intervention is to be treated as an opposition.

In decision T 1286/23, the Board of Appeal attempted to determine if the appeal proceedings may continue with the intervener only when the original parties had withdrawn their appeal.

The Board of Appeal then asked the following question: “After withdrawal of all appeals, may the proceedings be continued with a third party who intervened during the appeal proceedings? In particular, may the third party acquire an appellant status corresponding to the status of a person entitled to appeal within the meaning of Art. 107, first sentence, EPC?”.

Referrals pending before the Enlarged Board of Appeal may be found under https://www.epo.org/de/node/447109.

Published On: 12 December 2024Categories: PublicationsTags:

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