New Referral to the EPO Enlarged Board of Appeal Regarding the Status of an Intervener – G 2/24

The EPO has announced here that the Technical Board of Appeal in decision T 1286/23 has referred questions to the EPO’s Enlarged Board of Appeal regarding the status of a third party intervener in appeal proceedings.

A third party can “intervene” in ongoing opposition proceedings if either (a) infringement proceedings have been brought against that third party by the patentee, or (b) the third party has instituted proceedings for a ruling of non-infringement, following a request by the patentee to cease alleged infringement.  The ability to intervene extends to opposition appeal proceedings.

The Board of Appeal in T 1286/23 is trying to establish whether appeal proceedings can be continued with a third party who intervened during the appeal if all the appeals from the original (non-intervener) parties are withdrawn.  Proceedings would otherwise automatically terminate if all the appeals are withdrawn.  Thus, the Board of Appeal have asked the following questions:

“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?”

We await further developments with interest.