2.1. Observation by a third party

Art. 115 EPC 1973 provided that "any person" may present observations, whilst the German version referred to "jeder Dritte" and the French to "tout tiers". The revised EPC has aligned the English version with the German and French, so that it now refers to "any third party". See T 338/89 of 10.12.1990 and T 811/90. In the latter case, the patentee had filed an appeal against a decision of the opposition division concerning the removal of certain documents from the public part of the file. The opponent was not a party to the impugned decision and was consequently not entitled to be a party to the proceedings before the board. His request was therefore inadmissible but was admitted as an observation by a "third party" under Art. 115 EPC 1973.

Similarly the board in T 446/95 held that the intervention of a company was inadmissible, so its auxiliary requests were also inadmissible. However, there was nothing to prevent the company's observations and the documents it had filed from being dealt with under Art. 115 EPC 1973 (T 223/11).

In T 7/07, the board held that the patent in suit had not been granted for Lithuania under the EPC, as Lithuania was an extension state and therefore could not be designated for a European patent. The board agreed with the findings in T 1196/08 that an intervention based on proceedings for infringement of a patent that has effect in a particular state solely on the basis of national law is inadmissible. The intervener's submissions were consequently regarded as third-party observations under Art. 115 EPC.

In T 887/04 of 14 November 2006, the board found that, although the intervention had to be held inadmissible, account had to be taken of document D5 cited by the intervener under Art. 115 EPC for the purposes of examining novelty and inventive step, because, despite its belated submission, it was highly relevant.

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