Guidelines for Examination

Intervention of the assumed infringer

The assumed infringer of a patent (see D-I, 5) may file notice of intervention in the opposition proceedings within three months of the date on which infringement proceedings were instituted against him or on which he instituted proceedings for a court ruling that he is not infringing the patent. Notice of intervention must be filed in a written reasoned statement. It is not deemed to have been filed until the opposition fee has been paid in the amount prescribed in the Rules relating to Fees under the EPC.

Art. 105
Rule 89

Intervention is permissible as long as opposition or appeal proceedings are pending. A third party can become a party to the proceedings during the period for filing an appeal only if a party to the proceedings in which the decision was given files an appeal pursuant to Art. 107; otherwise the decision of the Opposition Division will become final on expiry of the appeal period (see G 4/91 and G 1/94 ).

A properly filed and admissible intervention is treated as an opposition, which may be based on any ground of opposition under Art. 100 (see G 1/94). This means that, when intervening at any stage of first-instance proceedings, the intervener enjoys essentially the same rights as any other party to the proceedings. If the intervener introduces new facts and evidence which appear to be crucial, the proceedings may need to be prolonged to enable them to be adequately considered. In all other cases the Opposition Division must ensure that the intervention does not delay the proceedings.

If the notice of intervention is filed at a late stage of the proceedings, for example when oral proceedings have already been scheduled, the Opposition Division may dispense with issuing communications under Rule 79(1) to Rule 79(3). The introduction of a new ground for opposition at such a late stage may lead to a postponement of the date set for oral proceedings.

Rule 79(4)

For accelerated processing of oppositions and accelerated processing before the Boards of Appeal on request, see E-VII, 4 and E-VII, 5.

The notice of intervention, filed in a written reasoned statement, must contain:

Rule 89(2)

(i)

a statement of the grounds for intervention and corresponding evidence

Art. 105(1)

(ii)

the name, address and nationality of the assumed infringer and the State in which his residence or principal place of business is located. Names of natural persons must be indicated by the person's family name and given name(s), the family name being indicated before the given name(s). Names of legal entities, as well as companies considered to be legal entities by reason of the legislation to which they are subject, must be indicated by their official designations. Addresses must be indicated in such a way as to satisfy the customary requirements for prompt postal delivery at the indicated address. They must comprise all the relevant administrative units, including the house number, if any. It is recommended that the telephone and fax number be indicated (see D-IV, 1.2.2.2(i) and 1.4.2);

Rule 76(2)(a)
Rule 41(2)(c)

(iii)

the number of the European patent at issue in the opposition proceedings in which intervention is made, the name of the proprietor and the title of the invention (see D-IV, 1.2.2.2(ii) and 1.4.2);

Rule 76(2)(b)

(iv)

a statement of the extent to which the European patent at issue is opposed by way of intervention and of the grounds on which the opposition by way of intervention is based, as well as an indication of the facts, evidence and arguments presented in support of these grounds (see D-IV, 1.2.2.1(iii), (iv) and (v) and D-IV, 1.4.2);

Rule 76(2)(c)

(v)

if the assumed infringer has appointed a representative, his name and the address of his place of business in accordance with sub-paragraph (ii) as set out above (see D-IV, 1.2.2.2(iii) and 1.4.2).

Rule 76(2)(d)

D-IV, 1, sets out further details and explains how to deal with the intervention if one of these requirements is not fulfilled.

Rule 77(1)