Friend of the IPKat Darren Smyth has informed the IPKat of a new decision by the EPO Englarged Board of Appeal. He writes
Article 105 EPC allows a person against whom a patentee has started infringement proceedings to "intervene" in any pending Opposition proceedings relating to the patent concerned, even though the period for filing an Opposition has passed. The intervener must file a reasoned statement as to why the patent should be revoked. In general, the intervener is then treated in the same way as a regular Opponent.G01/94 confirmed that it was possible to intervene during Appeal proceedings as well as during the first instance proceedings before the Opposition Division.
The new Decision G03/04 now states that, in the case of intervention during appeal proceedings, if the Opponent-Appellant withdraws the sole Appeal, proceedings cannot be continued with the intervener.
The IPKat says thanks Darren!
NEW EPO DECISION
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To expand upon this comment, essentially, the Enlarged Board considered that the status of an assumed infringer who intervenes only during appeal proceedings to be that of a party to the proceedings but not an appellant. The intervenor cannot obtain the status of an appealing party since there is no basis in the EPC for the payment of the appeal fee during appeal proceedings. Accordingly, if the appeal is withdrawn, the intervention does not alter the position and proceedings are terminated.
ReplyDeleteThe decision (in German) can be found at:
http://legal.european-patent-office.org/dg3/pdf/g040003dx1.pdf
The decision can be found in English at
ReplyDeletehttp://www.european-patent-office.org/epo/pubs/oj006/02_06/02_1186.pdf