When giving the decision on the staying of proceedings or thereafter the EPO may set a date on which it intends to continue the proceedings pending before it regardless of the stage reached in the proceedings against the applicant. The date is to be communicated to the third party, the applicant, and any other party. If no proof has been provided by that date that a decision which has become final has been given, the EPO may continue proceedings.
If a date is set for the resumption of the proceedings for grant, it should be chosen with due consideration for the interests of the third party who only becomes a party to the proceedings after a judgement has been given in his favour, on the basis of the probable duration of the court proceedings so as to enable them to be concluded within that period of time. If, by the date set, the court has not given a judgement, the proceedings for grant must at all events be further stayed if the judgement is expected in the near future. However, the proceedings for grant should be resumed if it is evident that delaying tactics are being employed by the third party or if the proceedings in the court of first instance have concluded with a judgement in favour of the applicant and the legal procedure is extended by the filing of an appeal.
Where proof is provided to the EPO that a decision which has become final has been given in the proceedings concerning entitlement to the grant of a European patent, the EPO must communicate to the applicant and any other parties that the proceedings for grant will be resumed as from the date stated in the communication unless a new European patent application pursuant to Art. 61(1)(b) has been filed for all designated Contracting States. If the decision is in favour of the third party, the proceedings may only be resumed after a period of three months of that decision becoming final unless the third party requests the resumption of the proceedings for grant.
The time limits in force at the date of staying other than time limits for payment of renewal fees are interrupted by such staying. The time which has not yet elapsed begins to run as from the date on which proceedings are resumed. However, the time still to run after the resumption of the proceedings may not be less than two months.
Example: The six-month time limit under Art. 94(1) and Rule 70(1) begins on 1 July 2008. Proceedings are stayed on 23 September 2008 and resumed on 4 August 2009. The last day of the period already elapsed is 22 September 2008. The time which has not elapsed is therefore 8 days and 3 months, begins on 4 August 2009 and ends on 11 November 2009.