New referral to Enlarged Board of Appeal on interveners’ rights

The Technical Board of Appeal of the European Patent Office (EPO) in T 1286/23 has referred a question to the Enlarged Board of Appeal, asking for clarification on whether a third party who intervenes during appeal proceedings may independently continue appeal proceedings if all other appellants withdraw.

The wording of the referred question is as follows:

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?

Background of T 1286/23

European Patent 2941163 was granted to Foreo AB and was subsequently opposed by Beurer GmbH. Prior to Opposition Division oral proceedings, Geske GmbH & Co.KG made two unsuccessful attempts to intervene in opposition proceedings under Article 105 EPC. The requests to intervene were refused, as proceedings for infringement or declaration of non-infringement had not been formally instituted at the time the requests for intervention were made. The patent was upheld in amended form at oral proceedings before the Opposition Division, and the decision was validly appealed by Beurer.

Following formal initiation of a suit for declaration of non-infringement, Geske successfully intervened in the pending appeal proceedings. Beurer subsequently withdrew its appeal, leaving Geske as the sole party challenging the patent.

Referral

Third parties who are accused of infringement have the right to intervene during pending opposition and appeal proceedings at the EPO under Article 105 EPC. However, according to EBoA decision G 3/04, third parties who intervene during appeal proceedings, such as Geske, may only be considered “parties as of right”, having not been parties to the original opposition.

It is established EPO case law that parties as of right do not have an independent right to continue appeal proceedings. Thus, following Beurer’s withdrawal of their appeal, proceedings would be terminated if Geske were not considered a full appellant.

The Technical Board of Appeal considered that the conclusions from G 3/04 would unreasonably disadvantage Geske in this situation, as it would be deprived of the opportunity to proceed with appeal proceedings, and that the rights conferred by Article 105 EPC were not intended to be limited in this way. It considers the legal status of parties to proceedings to be of fundamental legal importance and has therefore referred the above decision. It will be interesting to see whether this referral is accepted, and, if so, whether the Enlarged Board will deviate from the position taken in G 3/04.

We will be following the progress of this referral, so follow us on LinkedIn for further updates. To find out more, feel free to get in touch with Charlie O’Neill, Ian Jones, or email us at gje@gje.com.