Zusammenfassung von EPC2000 R 142 für die Entscheidung T0967/18 vom 14.03.2023

See also abstract under Article 104(1) EPC. In T 967/18 the appeal was against the opposition division's decision of 5 February 2018 revoking the patent. After the filing of this appeal, the Legal Division had informed the appellant (patent proprietor) that the opposition proceedings had been interrupted with effect 11 November 2016 and that the proceedings would resume on 4 November 2019. The opponent had appealed the Legal Division's decision. The Legal Board of Appeal dismissed that appeal in J 9/21. Hence, the opposition division had revoked the European patent and the patent proprietor had filed appeal T 967/18 during the aforementioned interruption period. In T 967/18 the board agreed with the Legal Board that it is not possible to set aside with ex-nunc effect a decision on interruption. It also agreed with the Legal Board's reasoning. In the current proceedings, it was only necessary to decide on the effects that the interruption had on the appeal. As correctly explained in J 9/21, in accordance with previous decisions of the boards, where the proceedings have been interrupted under R. 142(1)(b) EPC, acts done by the parties or the competent body of the EPO during the period of interruption are considered invalid. Categories may be borrowed from legal national traditions to argue whether they are invalid, devoid of effect or even non-existent. Irrespective of this qualification issue, the result and impact on appeals lodged against decisions taken during an interruption remain the same: the appeal and the appeal proceedings have no valid subject eligible for judicial review. In line with established case law, an admissible appeal requires the existence of an appealable decision. Thus, the appeal in question had to be regarded as not satisfying the requirements set out in Art. 106(1) EPC and was therefore inadmissible.