4.1. Application of Rule 142 EPC by the EPO of its own motion

The EPO must apply the provisions of R. 142 EPC (R. 90 EPC 1973) of its own motion (J 902/87, OJ 1988, 323; J 23/88; T 315/87 of 14 February 1989 date: 1989-02-14; J 49/92; T 854/12; J 7/16; T 54/17, J 2/22). Entering an interruption in the Register is not constitutive and is merely declaratory in effect (T 854/12, J 9/21). The consequence of an interruption in the proceedings is that the time limits in force as regards the applicant or patentee at the date of interruption of the proceedings, shall begin again as from the day on which the proceedings were resumed (see R. 142(4) EPC). However, the time limit for making the request for examination and the time limit for paying renewal fees are only suspended (see in this chapter III.D.4.8. "Consequences of interruption of proceedings (R. 142(4) EPC)").

The decision of the President of the EPO dated 21 November 2013 concerning the responsibilities of the Legal Division provides that the sole responsibility for the interruption and resumption of proceedings shall be vested in the Legal Division (see point 1.2(b), OJ 2013, 600).

However, in T 54/17 the board took the view that, in cases where an appeal was pending, the Legal Division did not have exclusive competence to decide on an interruption. It thereby endorsed the view taken in T 854/12 that a board could decide on this for itself in any proceedings before it because, otherwise, a department outside the Boards of Appeal could deprive it of its power over those proceedings without it being able to do anything about it, especially if interrupting them retrospectively. In the same vein, in J 2/22 the Legal Board explained that the competence of the boards under Art. 21(1) EPC for appeal proceedings, including decisions on the merits and ancillary procedural matters, was not affected by the competence of the Legal Division for decisions as to entries in the European Patent Register under Art. 20 EPC. The decision of the President of the EPO concerning the responsibilities of the Legal Division of 21 November 2013 (OJ 2013, 600), did not transfer any powers and competences from the Boards of Appeal to the Legal Division on the basis of R. 11 EPC, but only concerned the allocation of functions between the first-instance departments. From the mere fact that the Legal Division was responsible for entries in the Register regarding the dates of interruption or resumption of proceedings pursuant to R. 142 EPC, it could not be derived that the Legal Division would also be responsible for the decision to interrupt.

In J 9/21, the Legal Board recalled that, under Art. 127(1) EPC in conjunction with R. 143(1)(t) EPC, the European Patent Register, for which the Legal Division was responsible pursuant to Art. 20(1) EPC, had to contain inter alia entries on dates of interruption and resumption of proceedings under R. 142 EPC. It also emphasised that the EPO should endeavour to avoid conflicting decisions on the interruption of proceedings under R. 142(1)(b) EPC which concern the same applicant or patent proprietor and the same set of facts in multiple proceedings, and agreed that the approach taken in T 1389/18 could avoid two conflicting final decisions of boards of appeal being taken on the same legal question. The Legal Board agreed with the finding in T 1389/18 and J 10/19 that the Legal Division had the power to determine an interruption of the proceedings, and noted that, as such, this power was not denied in T 854/12 either, where it was only concluded that the Legal Division's power in that regard was not exclusive.

In T 1389/18 the board held that the Legal Division generally had the power to establish that proceedings had been interrupted under R. 142(1)(b) EPC with retrospective effect too.