Beauty and the Board: Glow-Up Patent Referral G2/24 on Question of Intervener Rights
The Enlarged Board of Appeal (EBA) of the European Patent Office (EPO) has received a new referral, designated as G2/24 concerning EP patent 2941163 laying claims to a cleansing skin-care device. This referral, made by Technical Board of Appeal 3.2.04 through an interlocutory decision T 1286/23, addresses a significant procedural question in European patent practice.
The referral stems from a situation where all original appellants have withdrawn their appeals, leaving only a third-party intervener who joined the proceedings during the appeal stage.
The specific 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?"
This question touches upon fundamental aspects of procedural law within the European patent system. The bottom line of the matter is whether this intervener can effectively "inherit" the status of an appellant and continue the proceedings in the absence of the original parties, thereby deviating from decision G3/04: “After withdrawal of the sole appeal, the proceedings may not be continued with a third party who intervened during the appeal proceedings”.
Article 107 EPC states that any party to proceedings adversely affected by a decision may appeal. However, as explained in T 1286/23, interveners in appeal have not been party to the opposition proceedings, and consequently Article 107 EPC does not foresee a procedural role for them in appeal proceedings. In other words, the status of an intervener who joins appeal proceedings is not explicitly addressed by Article 107 EPC. T Article 105 EPC allows for interventions in ongoing proceedings, typically by alleged infringers. This interplay between both EPC Articles 105 and 107 forms the basis of the Board’s (3.2.04) reasoning for providing that no matter which status the intervener would have, a pending intervention following the withdrawal of all appeals could, in theory, also result in essentially automatic remittal of the case to the Opposition Division.
In view of G3/04 reciting “the sole appeal”, the Board thus decided to refer a question to the Enlarged BOA, being understood that the term “all appeals” is covering all appeal situations, also the situation of the “sole appeal” within the meaning of G3/04
The Enlarged Board of Appeal's decision on this matter could have several outcomes, each with its own implications:
Allowing continuation: If the Enlarged Board decides that an intervener can continue proceedings and acquire appellant status, it would significantly strengthen the position of third-party interveners. This could lead to more interventions in appeal proceedings, as potential infringers might see an opportunity to influence the outcome even if the original parties settle or withdraw.
Denying continuation: If the Board rules against the intervener's right to continue, it would maintain a stricter interpretation of Article 107 EPC and potentially discourage interventions.
Conditional continuation: The Board might decide that interveners can continue under certain conditions, creating a nuanced approach that balances the interests of all parties involved.
Patent practitioners, applicants, and potential interveners might wish to closely monitor this case, as its outcome may influence future strategies and the dynamics of appeal proceedings before the EPO.
De Clercq and Partners is acknowledged as a leading force in oppositions and appeals. If you need any advice on contentious proceedings whether before the EPO or in general, feel free to contact us at info@dcp-ip.com.
