The question has been referred to the Enlarged Board of Appeal, which will examine the case under referral G 2/24. Third parties may submit written observations until April 17, 2025.
The technical board of appeal has submitted the following legal 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 Article 107, first sentence, EPC?
A previous decision of the Enlarged Board of Appeal, G 3/04, had ruled that “After withdrawal of the sole appeal, the proceedings may not be continued with a third party who intervened during the appeal proceedings.”
However, in decision T 1286/23, the board considers departing from this conclusion.
As a reminder, a third party accused of infringement by a patent holder may intervene in an ongoing opposition procedure against the contested patent. Article 105 of the EPC states that an admissible intervention is treated as an opposition.
In the case leading to the referral, the company accused of infringement intervened at the appeal stage. It is noteworthy that the alleged infringer had attempted to intervene in the opposition at an earlier stage on two occasions, but the conditions set out in Article 105 were not met. The sole opponent, who had filed an appeal, later withdrew their appeal. Under these circumstances, can the alleged infringer (and intervenor) continue the appeal proceedings?
The board of appeal seems inclined to proceed with the intervenor. It interprets decision G 3/04 in this direction. The board also draws parallels between Articles 105 and 107 of the EPC. Another issue raised concerns the payment of the appeal fee, which was not paid by the intervenor. The board considers that the present case differs from that underlying G 3/04 and formulates its question regarding “all appeals” rather than “the sole appeal.”
In accordance with Article 10 of the RPBA, third parties have the opportunity to submit written observations. To be considered by the Enlarged Board of Appeal, these observations must be submitted by April 17, 2025.