Key points
- "The patent proprietor argued that, following decision T 384/15, the Board had to consider wether, in the present case, when invoking Article 105 EPC, the intervener attempted to circumvent the law by abuse of process."
- "The patent proprietor submitted that the legal requirement to present relevant evidence within the original 9 months opposition period was circumvented by the intervener."
- The Board: "The alleged existence of a relationship between the appellant and the intervener, even if confirmed, would not be sufficient for concluding that procedural abuse occurred."
- The Board derives from G3/97 r.2.1 that "it is neither vexatious nor illegitimate if the opponent and the intervener coordinate their actions within the limits of the applicable procedural framework."
- "Referring to documents and objections submitted by the opponent does not represent an abuse but rather an attempt of the intervener to pursue their legitimate interest by using information which was publicly available, e.g. by file inspection, when the intervention was filed. There is also no requirement in the EPC that the objections and the evidence submitted by an intervener should not be related to those previously submitted by an opponent."
- Finally, "The argument that using a straw man as opponent allowed the intervener to create a second, abusive, opportunity to circumvent the legal requirement to present relevant evidence within the original 9 months opposition period is therefore not convincing."
- "The procedural conduct of the intervener leading to the timing of the intervention is also not regarded as abusive, because in the present case it was the cease and desist letter, e.g. the legal action initiated by the patent proprietor against a third party, which triggered the filing of the notice of intervention at a very late stage of proceedings before the EPO."
- "The patent proprietor further argued that the evidence submitted by the intervener not be admitted into opposition proceedings in application of Articles 12(6) and 14 RPBA 2020. This was because [] Article 14 RPBA 2020 specified that Article 12(6) RPBA 2020 also applied to interventions, with the result that there were clear limits to what an intervener is allowed to submit in appeal proceedings, which were similar to those foreseen for an appellant-opponent."
- The Board: "In the present case the Board, taking into account the principle, firmly established in the case law, that an intervener has the right to present a new ground for opposition at the appeal stage (G 1/94), concludes that the purpose of an intervention under Article 105 EPC during appeal proceedings would be meaningless if the evidence upon which the intervener decides to rely was not admitted therein. Systematically preventing interveners from referring to duly filed prior-art documents only because the same or similar evidence was filed late by an opponent would force these third parties to pursue their legitimate interest, recognized under Article 105 EPC, in national proceedings. This would lead to a situation which is incompatible with the spirit and purpose of the EPC (Article 23 RPBA 2020). As a consequence of the above the Board concludes that the evidence filed by the intervener should be admitted into the present proceedings."
- Hence: " Article 12(6) RPBA 2020 is not applicable to the present case" (for the intervener)
- The Board remits the case without considering any of the substantive issues. "the particular circumstances of the present case, in particular in view of the filing of an intervention based on substantially new evidence after the decision under appeal had been announced by the opposition division, call for remitting the case to the opposition division (see also G 1/94, point 13 of the Reasons)."
EPO
The link to the decision is provided after the jump, as well as (an extract of) the text of the decision.
source http://justpatentlaw.blogspot.com/2022/02/t-295118-intervention-and-art14-rpba.html
