9.2.3 Party entitled to file petition for review under Article 112a(1) EPC

In R 1/11 the decision under review had rejected as inadmissible the appeal filed against the decision of the opposition division to revoke the European patent, on the ground that the "alleged appellant" was not entitled to appeal at the time when the notice of appeal was filed, the patent having been previously transferred. The notice of appeal filed by the transferee had also been rejected as inadmissible both because it was filed late and because the transferee was no longer adversely affected.

The Enlarged Board held that the requirement of Art. 112a(1) EPC that the petitioner be adversely affected for a petition to be admissible was fulfilled with respect to the transferee, irrespectively of its party status before the board of appeal, since the adverse effect resulted from the refusal to acknowledge that it had the status of appellant. However, the transferor's petition was clearly not admissible because, not being the current proprietor, it was not adversely affected by the impugned decision.

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