3.2. Rule 14(3) EPC

Under R. 14(3) EPC (R. 13(3) EPC 1973), upon staying the proceedings for grant, the EPO may set a date on which it intends to resume the proceedings for grant, regardless of the stage reached in the national proceedings under R. 14(1) EPC. This provision was to be found in R. 13(3) EPC 1973. The wording has been amended.

The board held in T 146/82 (OJ 1985, 267) that if, in accordance with R. 13(3) EPC 1973, the EPO set a date on which it intended to continue the proceedings for the grant of the European patent, the date might be varied or the order staying the proceedings might be discharged at the subsequent request of the applicant or of the third party who applied for the order.

In J 33/03 the legal board pointed out that, in contrast to the position under R. 13(1) EPC 1973, under R. 13(3) EPC 1973 it was in the discretion of the EPO to decide whether proceedings were to be resumed. In exercising its discretion, the interests of the parties had to be balanced, but the board was neither competent nor qualified to decide which party the European application might belong to, or even which outcome of the entitlement proceedings might be more likely. The board only has to evaluate the impact of a further suspension or the continuation of the grant proceedings on each of the parties.

When exercising its discretion under R. 13(3) EPC 1973, the board in J 10/02 took into account the fact that the entitlement proceedings only concerned part of the invention and the duration of the suspension.

In parallel decisions J 6/10 and J 7/10 the legal board held that some aspects of the exercise of discretion under R. 14(3) EPC are (i) how long the proceedings before the national courts/authorities have been pending (with a period of more than four years held to be considerable both for grant proceedings to be stayed and for entitlement proceedings to be pending in first instance) (ii) the duration of the suspension of grant proceedings, and (iii) requests for suspension of grant proceedings filed at a late stage.

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