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Case Law of the Boards of Appeal

 
 
1.1. Exception for opponent - time limit for filing statement of grounds of appeal

Opponents are not entitled to request re-establishment of rights in respect of the two-month time limit for filing an appeal under Art. 108, first sentence, EPC (see T 210/89, OJ 1991, 433; see also T 323/87, OJ 1989, 343; T 128/87, OJ 1989, 406; T 314/01; T 2454/11); nor in respect of the nine-month time limit under Art. 99(1) EPC for filing the notice of opposition and paying the appropriate fee (T 702/89, OJ 1994, 472; T 748/93).

In G 1/86 (OJ 1987, 447) the Enlarged Board of Appeal held, however, that an opponent as appellant might have his rights re-established under Art. 122 EPC if he had failed to observe the time limit for filing the statement of grounds of appeal under Art. 108, third sentence, EPC (established case law, see T 335/06). The reasons justifying the exclusion of opponents from re-establishment of rights in respect of the time limit for appeal - in particular the patent proprietor's interest in no longer being left uncertain as to whether an appeal had been lodged once this time limit had expired - could not be extended to the time limit for filing the statement of grounds of appeal, because this uncertainty no longer existed. The Enlarged Board applied the general legal principle recognised in the contracting states of the EPC that all parties to proceedings before a court must be accorded the same procedural rights, as a principle deriving from the general principle of equality before the law. Under this principle an opponent must not be treated differently from the patent proprietor as that would result in unjustifiable discrimination against him.