Zusammenfassung von Article 122 EPC für die Entscheidung T2615/22 vom 24.07.2025

In case T 2615/22, the parent application of the contested patent was filed on 10 March 2015, i.e. more than twelve months after the filing dates of the priority applications P1 and P2. Upon a request for re-establishment of rights by the then applicant of the parent application, the Receiving Section decided on 14 January 2016 to restore the priority period. The opponent-appellant argued that the patent was not entitled to the priority of P1 and P2. It considered that the Receiving Section was not competent to take that decision and that it did not correctly apply the all-due-care criterion in its decision. It contended this decision in the application proceedings should be set aside in the opposition appeal proceedings. The present board did not see any reason to deviate from T 1482/21 (relating to the patent granted on the parent application) according to which the Receiving Section was competent to take the decision of 14 January 2016, and that this decision was final and that this prevented other departments of the EPO such as an opposition division or a technical board of appeal which decide on questions of priority in other, subsequent proceedings from reviewing and overturning the Receiving Section's decision. In accordance with these conclusions, the present board agreed that the opposition division had to acknowledge the Receiving Section's decision to grant the request for re-establishment of rights in respect of the priority period. As to whether a positive decision of the Receiving Section on re-establishment of rights was open for review in subsequent opposition/appeal proceedings, the board did not consider convincing the opponent’s arguments. As set out in T 1482/21 if the Receiving Section grants a request for re-establishment of rights in respect of the priority period, the applicant is not adversely affected under Art. 107 EPC. As the applicant is the only party to the proceedings before the Receiving Section, a favourable decision on such a request is not appealable and becomes final immediately. The nature of opposition proceedings and the case law on res judicata were discussed in detail during the oral proceedings before the board. The board recalled that opposition proceedings are not designed to be a continuation of examination proceedings (G 3/14). This also meant that, legally speaking, opposition proceedings must not be understood as any kind of appeal proceedings in relation to the proceedings before the Receiving Section and the examining division. Accordingly, an opposition division does not have the power to review and set aside a procedural decision taken in these proceedings. Opposition is not a legal remedy in the classical sense and it does not have the effect of transmitting the case to a superior tribunal. Not all possible irregularities in an application can be reviewed in opposition proceedings, not even all substantive ones, but only those which are listed as grounds for opposition in Art. 100 EPC. An examination of the same substantive patentability requirements – which qualify as grounds for opposition – may be undertaken by different departments in different proceedings, and there is indeed no binding effect in that regard. The Receiving Section's decision on re-establishment of rights does not concern the assessment of a substantive requirement which qualifies as a ground for opposition. It concerned a purely procedural matter decided in ex parte proceedings in the then applicant's favour. The fact that a purely procedural matter may have ramifications on whether a patent exists, does not change its qualification as a procedural matter. This may result in a patent coming into existence which may otherwise not have been granted. Nevertheless, such possible irregularities in the patent grant procedure do not qualify as a ground for opposition and therefore cannot be reviewed in opposition proceedings or subsequent opposition/appeal proceedings.