Quick Navigation
VI.E.6. Parties to proceedings
In T 552/02 the appellants (proprietors) asserted that the respondents should not be a party to the proceedings with respect to the application for re-establishment. They essentially based this assertion on a passage in the Guidelines E-VIII, 2.2.7 (old version), which reads as follows: "The grounds for the decision [on the re-establishment of rights] need only be stated if the application is disallowed. This also applies in opposition proceedings since the opponents are not involved in the procedure for re-establishment of rights". They further held that Art. 15(2) RPBA 2003 obliged the board to state its grounds if it gave a different interpretation of the EPC 1973 to that provided for in the Guidelines.
On the latter point the board said (a) that the members of the board were not bound by any instructions and had only to comply with the provisions of the EPC 1973, which meant the board was not bound by the Guidelines, and (b) that Art. 15(2) RPBA 2003 did not oblige the board to state grounds for deviating from the Guidelines but simply stipulated that it should "state the grounds for its action if it consider[ed] that [its] decision [would] be more readily understood in the light of such grounds".
According to the board, the response to be given to the application for re-establishment was of the utmost importance for the respondents, as it affected the actual admissibility of the appeal and hence the reviewability of the opposition division's decision to revoke the patent in suit. From this the board deduced that it would be a breach of Art. 113(1) EPC 1973 to take a decision concerning the interests not only of the appellants but also of the respondents without giving the latter an opportunity to present comments.
In T 1561/05 the board came to the same conclusion: Art. 122 EPC 1973, only lays down rules concerning the requester. However, this does not mean that, in re-establishment proceedings taking place in connection with inter partes opposition or opposition appeal proceedings, the requester is the sole party, with party status denied to others. Re-establishment, within the relevant examination or opposition procedure, is a separate, formally established intermediate procedure involving an assessment of whether non observance of a time limit relevant to a decision has led to the legally prescribed consequences of such non observance or whether, given that the requester exercised all due care required by the circumstances, the act subject to a time limit can be deemed to have been completed in due time. If, therefore, a request for re-establishment of rights is filed in the context of inter partes proceedings, the patent proprietor and the opponent will also be parties to the re establishment proceedings. In the latter proceedings, the party contesting the request has an unlimited right to be heard under Art. 113 EPC 1973.