4. Beitritt kurz vor der mündlichen Verhandlung

In T 1841/23 the board had accelerated the appeal proceedings due to parallel infringement proceedings before the Unified Patent Court. The board summoned the parties to oral proceedings to be held on 11 December 2024. According to its preliminary opinion, the patent was most likely to be revoked on the ground of added subject-matter. A notice of intervention was filed ca. three weeks before the arranged oral proceedings and the patent proprietor quickly requested their postponement. By communication of 26 November 2024 the board invited the proprietor and opponent 1 to file observations on the notice of intervention by 4 December 2024. Oral proceedings were held on 11 December 2024 as originally scheduled.

According to the board, the proprietor's argument, in effect invoking the right to be heard, that two weeks was an insufficient period to fully respond to the notice of intervention, had no bearing on the question of the date for oral proceedings as governed by Art. 15(2) RPBA. The same applied to its complaint that new arguments were put forward in the notice of intervention, and that the discussion had developed into an intertwined tripartite debate. As the proprietor's core concern was the right to be heard, and since oral proceedings served to protect that very right by providing another opportunity for parties to present their comments, the continuation of the oral proceedings before the board did not adversely affect the parties to the appeal proceedings.

The board also disagreed with the proprietor's suggestion, invoking decision T 1961/09, that continuing the oral proceedings before the board could only be fair to the proprietor if the intervener did not make any submissions at all. The implications of an intervention filed shortly before the arranged oral proceedings had to be determined on a case-by-case basis. In the board’s view, there seemed to be no appreciable disagreement between the two boards in methodological terms. In the present case, unlike the one underlying T 1961/09, the notice of intervention did not raise any further objections or new issues, but only argued on old topics.

The board then moved on to the added subject-matter objections against the patent and concluded that all claim requests were unallowable under Art. 123(2) EPC. After the board reached this conclusion but before any decision was announced, the proprietor submitted a written objection under R. 106 EPC.

The board observed that the proprietor's right to be heard was at the heart of the R. 106 objection. At issue was the decision to revoke the patent because recurring feature F3 was not originally disclosed, thus contravening Art. 123(2) EPC. The board noted that this ground and evidence had been around since the beginning of the opposition proceedings, and the evidence was entirely by the proprietor's own hand. It could not agree with the proprietor's view, namely that any late-refining or further developing of the arguments on the same old ground and evidence would raise concerns with respect to the right to be heard. The board recalled that a first indication of what the board found particularly relevant in this case had already been given in the preliminary opinion, in which the added-matter objection was one of merely two substantive objections addressed. The notice of intervention was evidently never considered relevant as a basis for the decision on the appeal, since an objection being most likely prejudicial to the opposed patent's maintenance was already in the proceedings. The proprietor could not have been taken by surprise by the grounds and evidence forming the basis of the present decision. Moreover, the proprietor had an opportunity to present its comments on them.

While an admissible intervention was to be treated as an opposition (Art. 105(2) EPC), its filing shortly prior to the oral proceedings before a board did not generally excuse the proprietor, and in particular it did not hand them a voucher for more time. Its concrete implications for opposition appeal proceedings were rather to be determined on a case-by-case basis, under the provisions of the EPC and the RPBA. Nor were opposition appeal proceedings designed to serve as a placeholder for tactical considerations in parallel proceedings for infringement. They were rather an existential challenge to the title, on the basis of which enforcement was pursued in the infringement proceedings, and parameters such as legal certainty and procedural economy were also involved. Any difficulties for the proprietor in drafting auxiliary requests that also provided the best scope of protection, considering the ongoing infringement proceedings, were not a reason to delay the opposition appeal proceedings.

For these reasons, which also translated into a lack of "special reasons" under Art. 15(6) RPBA, the board did not refrain from deciding on the appeal on a ground for opposition that appeared also in the notice of intervention. As a result, the objection submitted by the proprietor under R. 106 EPC was dismissed.