1.4.2 Intervention in appeal proceedings

In G 1/94 (OJ 1994, 787) the Enlarged Board concluded that Art. 105 EPC 1973 should apply to appeal proceedings. The term "opposition proceedings" was not restricted to the department of first instance, but could also refer to such proceedings at second instance. Intervention during appeal proceedings was therefore admissible (see also T 694/01). A notice of intervention filed during the two-month period for appeal has no legal effect if no appeal is filed (G 4/91, OJ 1993, 707).

In T 694/01 the board found that intervention depended on how far the opposition or appeal was still pending. An intervener could not challenge issues on which a final decision had already been taken (in earlier appeal proceedings).

In T 1961/09 the board held in the catchword that while an intervention under Art. 105 EPC shortly before oral proceedings in an appeal, raising new issues, will normally require the oral proceedings to be adjourned if not the remittal of the case altogether (G 1/94, OJ 1994, 787), the oral proceedings may be continued if and so far as this can be done without unfairness to the other parties, in particular the proprietor.