In the opposition appeal proceedings “T1286/23”, which we had already reported on “here”, the interlocutory decision of the responsible Board of Appeal 3.2.4 has now been issued.
Indeed, the Board comes to the conclusion that an intervener may intervene in the appeal proceedings and file an appeal without prior intervention in the first instance opposition proceedings – and also irrespective of the time limit requirements laid down in Article 108 EPC – and that the appeal proceedings may generally be continued also with the intervener as sole appellant.
Even if the Board ultimately does not completely disagree with the earlier decision G3/04, it recognizes a hitherto unresolved contradiction in the application of Articles 105 & 107 EPC to the provisions on the legal and party status of an intervener in appeal proceedings.
In the present case, the Board considers Article 107 EPC not to be applicable – at least not without contradiction – to interveners in appeal proceedings.
Article 107, first sentence, EPC lays down as a condition for standing as an independent appellant that (only) “any party to proceedings adversely affected by a decision may appeal”.
According to G3/04, an intervener in the appeal proceedings does not fulfill this condition. There, the intervener was only granted a dependent party status pursuant to Article 107, second sentence EPC. The proceedings therefore end automatically as soon as the sole independent appellant withdraws the appeal.
In contrast to this, in the present case the Board takes the view that an intervener can certainly be granted an independent (i.e. not a mere dependent) position as appellant on the basis of Article 105 EPC. This also applies in particular if, as in the present case, the intervener could not admissibly intervene in the proceedings at first instance, i.e. did not obtain a position as opponent at first instance. Thus, even after the withdrawal of all appeals by the previous appellants, the proceedings could be continued with the intervener as the new sole appellant.
In the light of this contradiction, the Board decided to address the following questions for referral to the Enlarged Board of Appeal:
- “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?“.
