3.4.1 Article 112a(1) EPC – Party adversely affected

In the case underlying R 1/11, the patent had been transferred and the transferee had filed an appeal against the decision of the opposition division to revoke the patent. The transfer of the patent had, however, not been registered in line with R. 22 EPC before the expiry of the period for filing the notice of appeal. Therefore, the decision under review had rejected the transferee's appeal as inadmissible. The transferor's appeal, filed after the expiry of the period for filing a notice of appeal, had also been considered inadmissible. Both the transferee and the transferor filed a petition for review. The Enlarged Board held that the requirement of Art. 112a(1) EPC that the petitioner be adversely affected for a petition to be admissible was fulfilled with respect to the transferee, irrespectively of its party status before the board of appeal, since the adverse effect resulted from the refusal to acknowledge that it had the status of appellant (his petition was, however, considered clearly unallowable in the end). The transferor's petition, on the other hand, was considered clearly inadmissible because, not being the current proprietor, the transferor was not adversely affected by the impugned decision.

In R 13/22 the Enlarged Board emphasised that Art. 112a(1) and 107 EPC both refer to the adverse effect being from a/the decision, not the reasoning set out in the decision. Furthermore, the Enlarged Board saw no reason to give "adversely affected" in Art. 112a(1) EPC a different meaning from that given to it in Art. 107 EPC. The case law on "adversely affected" under Art. 107 EPC was thus of relevance to the interpretation of this term in Art. 112a(1) EPC. The Enlarged Board referred among others to T 193/07 in which the board considered that a party was only adversely affected if the Order of the appealed decision did not comply with its request. The Enlarged Board also recalled further case law of the boards, according to which, in cases where the Order of the decision of the opposition division was the revocation of the patent, an opponent who had requested revocation of the patent in its entirety was not "adversely affected by" said decision within the meaning of Art. 107 EPC, irrespective of the reasons given in the decision.