3.1.2 Opening of proceedings before a national court

According to T 146/82 (OJ 1985, 267), suspension had to be ordered if satisfactory proof of the opening of relevant proceedings before a national court was given to the EPO by a third party, provided that the European patent application had not been withdrawn or was not deemed to have been withdrawn.

In J 6/03 the legal board held that R. 13(1) EPC 1973 referred to proceedings which resulted directly, i.e. generally and automatically, in decisions mentioned in Art. 61(1) EPC 1973. The provision was therefore not applicable in respect of decisions of courts of third states (here, Canada).

According to J 36/97 neither the jurisdiction of the national court whose decision was to be recognised nor the validity of such decision might be reviewed by the boards of appeal (see also J 8/96 and J 10/02). When and how legally relevant civil proceedings were opened in a contracting state was likewise determined by national law (J 7/00).

In J 9/06 the Legal Board pointed out that, according to G 3/92 (OJ 1994, 607), only the courts of the contracting states have jurisdiction to decide claims to entitlement to the right to the grant of a European patent. It was not possible for the EPO, nor was it its function in the context of the examination of a request to suspend proceedings under R. 13 EPC 1973, to examine whether the subject-matter disclosed in a European patent application in respect of which suspension was requested corresponded to the disclosure of another application, ownership of which was disputed before a national court.

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