Tag: appeal

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Appeal proceedings with intervener

In proceedings before the EPO, the question of whether appeal proceedings may be continued, after withdrawal of the sole appeal, with a party who intervened at the appeal stage has been settled for a long time. The Enlarged Board of Appeals (EBA) held in decision G 3/04: “After withdrawal of the sole appeal, the proceedings may not be continued with a third party who intervened during the appeal proceedings.”

In T 1286/23, the Board brings this question before the Enlarged Board of Appeals again. As stated in r. 3.7 of the decision, “[the] referring Board is … not in agreement that Article 105 EPC in combination with Article 107 EPC must be read in the sense that also a third party intervening only at the appeal stage can never become more than a non-appealing opponent.” The referring Board provides detailed reasons for this position in r. 3.7 et seq. of the decision.

Thus, the procedural question pertaining to a party who intervened at the appeal stage is going to be revisited.

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EPO – strawman’s appeal fee

A new EPO Boards of Appeal decision T 84/19 deals with an interesting question relating to appeal fees. The decision holds that an opponent who is a natural person or otherwise entitled to benefit from the reduced appeal fee does not have to pay the full appeal fee, even if there is a secret sponsor (akin to the ‘real party in interest’ in post-grant proceedings in other jurisdictions). This holds as long as the opposition does not constitute a circumvention of the law regarding the entitlement to pay a reduced appeal fee.

By way of background for the readers familiar with or otherwise interested in USPTO post-grant proceedings: According to decisions G 3/97, G 4/97, it is not required that the ‘real party in interest’ be named in EPO opposition proceedings. Thus, the situation may (and does) occur in which an opponent as party to the EPO proceedings may be different from the person interested in the revocation or amendment of the patent.