Press Communiqué of 25 September 2025 concerning decision G 2/24 (“Skin cleanser”) of the Enlarged Board of Appeal
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The Enlarged Board today issued its decision in case G 2/24. It confirmed its previous decision G 3/04 and concluded that, after withdrawal of all appeals, appeal proceedings may not be continued with a third party who intervened only during the appeal proceedings.
Background
The referral by Technical Board of Appeal 3.2.04 in T 1286/23 of 11 November 2024 concerned the questions whether, after withdrawal of all appeals, the proceedings may be continued with a third party who intervened during the appeal proceedings and whether, more particularly, the third party may acquire an appellant status corresponding to the status of a person entitled to appeal within the meaning of
Article 107, first sentence, EPC.
In the case underlying the referral, one of the opponents had filed an appeal against the decision of the opposition division. An admissible intervention pursuant to Article 105 EPC by the third party was only filed thereafter, i.e. during the appeal proceedings. The opponent-appellant then withdrew its appeal. The referring Board asked the Enlarged Board whether it would reconsider its earlier ruling in G 3/04, according to which, after withdrawal of the sole appeal, the proceedings may not be continued with a third party who intervened during the appeal proceedings.
Key considerations
The Enlarged Board found that the considerations and findings of decision G 3/04 continue to apply.
It noted that changes to the legal situation since G 3/04 could potentially prompt a reconsideration of its earlier conclusions but found that none of the provisions relevant to the present referral — i.e. Articles 99(1), 105 and 107 EPC — had been amended in a substantive manner after the decision G 3/04 had been issued.
The Enlarged Board also stressed that appeal proceedings are of a judicial nature and that the appeal is designed as a remedy on both facts and law for parties to proceedings before the administrative departments of the EPO with the aim to eliminate an “adverse effect” of the impugned decision. The scope of the appeal proceedings is primarily determined by the decision under appeal, the appellant’s requests submitted with the notice of appeal and the statement of grounds of appeal, and, in inter partes proceedings, the submissions of the other party or parties in reply to the appellant’s statement of grounds of appeal. The appeal procedure is not an ex officio procedure but depends on the appellant to initiate, determine the scope of, and conclude the procedure within that party’s power of disposal, in accordance with the principle of party disposition.
The Enlarged Board further held that a party entitled to appeal within the meaning of Article 107, first sentence, EPC is only the person who had formally participated in the proceedings before the administrative department that issued the impugned decision. An adverse effect within the meaning of this provision exists if a decision of an administrative department falls short of the request of a party to the proceedings or deviates from it without their consent.
With regard to an intervention by a third party, the Enlarged Board stated that the exceptional nature of this legal remedy inherently precludes an extensive interpretation and application thereof. An intervener who had not been a party to the administrative proceedings leading to the decision under appeal becomes a party as of right and enters the appeal proceedings at the stage they are in at the time of effect of the intervention. Parties to appeal proceedings as of right do not have a legal status independent of the appeal. The principle of party disposition, together with the binding nature of the parties’ requests and the prohibitions of ruling ultra petita and reformatio in peius, limits the option for procedural action of all involved in appeal proceedings, including third parties entering into pending appeal proceedings by virtue of an intervention.
Accordingly, if the sole or all appeals are withdrawn in opposition appeal proceedings, the proceedings end with regard to all substantive issues for all parties involved and cannot be continued with an intervener at the appeal stage.
Order
The order by the Enlarged Board of Appeal reads as follows:
After withdrawal of all appeals, appeal proceedings may not be continued with a third party who intervened during the appeal proceedings in accordance with Article 105 EPC.
The intervening third party does not acquire an appellant status corresponding to the status of a person entitled to appeal within the meaning of Article 107, first sentence, EPC.
Contact
Nikolaus Obrovski
Jeannine Hoppe
Spokespersons of the Boards of Appeal of the European Patent Office
[email protected]
This press release is a non-binding document for media use.
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