Under (the unchanged) Art. 106(1) EPC
, an appeal has suspensive effect. The Legal Board of Appeal defined this effect in J 28/94
(OJ 1995, 742), in which a third party claimed entitlement to the grant of the patent and requested suspension of the proceedings for grant under R. 13(1) EPC 1973
. The board took the view that the appeal's suspensive effect meant the contested decision had no legal effect until the appeal was resolved. Otherwise appeal would be nugatory.