Under 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.
Thus, if a decision refusing to suspend the publication of the mention of grant of a patent were appealed, publication should be deferred until the appeal was decided. If (as here) this was not possible for technical reasons, the EPO should take all necessary steps to advise the public that the mention of grant was no longer valid (see also T 1/92, OJ 1993, 685).
According to J 28/03 (OJ 2005, 597), suspensive effect means that the consequences following from an appealed decision do not immediately occur after the decision has been taken. Actions normally taking place after a decision are "frozen". Suspensive effect does not have the meaning of cancellation of the appealed decision. Even after an appeal the decision as such remains and can only be set aside or confirmed by the board of appeal. Moreover, the status of a divisional application filed while an appeal against the decision to grant a patent on the parent application is pending depends on the outcome of that appeal.
In T 591/05, the suspensive effect of an appeal was said to be a direct consequence of, and was subordinate to the appeal itself (Art. 106(1) EPC 1973) and, consequently, no circumstance directly arising from the suspensive effect of the appeal could be invoked in support of the admissibility of the appeal itself.