In accordance with Article 112(1)(a) EPC, a new referral was made by Technical Board of Appeal 3.2.04 to the Enlarged Board of Appeal by interlocutory decision of 11 November 2024 in case T1286/23.
The case relates to rights of third parties who intervened in proceedings.
The facts of the case are as follows. Prior to oral proceedings before the Opposition Division in opposition proceedings relating to a European patent granted on 09 December 2020, an intervention under Article 105 EPC was filed by an intervener based on a warning letter the intervener had received from the patent proprietor on 23 August 2022. In that letter, the patent proprietor accused the intervener of infringing the granted European patent and demanded that the intervener ceased the infringement, also threatening the intervener with legal action.
The Opposition Division found that the mere existence of a threat without action for infringement was insufficient for an intervention under Article 105 EPC.
The intervener later filed a legal action in Germany to hold that they did not infringe the European patent. This suit was the basis for the intervener second attempt to intervene to the pending opposition proceedings on 2 March 2023. This second intervention was also held inadmissible by the Opposition Division on the grounds that the suit had not yet been "instituted" for the purposes of Article 105(1)(b) EPC at the time of second intervention.
The Opposition Division maintained the European patent in amended form by decision dated 09 May 2023, decision against which the opponent filed a valid appeal. The suit between intervener and patent proprietor was considered as instituted as of 23 June 2023, based on which the intervener filed on 15 August 2023 a third intervention and filed an appeal against the decision of 9 May 2023, with the request to revoke the patent in its entirety. Fees for both opposition and appeal were paid. On 30 April 2024, the opponent withdrew its appeal.
The question referred to the Enlarged Board of Appeal is, 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 Article 107, first sentence, EPC?
Text of referral can be found here