Résumé de EPC2000 Art 107 pour la décision T1286/23 du 11.11.2024

In T 1286/23 one of the opponents (the "appellant") filed an appeal against the decision of the opposition division. Thereafter, a third party (the "intervener") declared an intervention and filed an appeal against the opposition division's decision, paying the fees for both opposition and appeal. The board then issued summons for oral proceedings, whereupon the appellant withdrew its appeal. The board summarised the situation in the light of G 3/04 as such that Art. 105 EPC allows an intervener to join as an opponent and as an opponent only. Neither Art. 105 EPC nor Art. 107 EPC mention any position, and thus also of any possibly different position, of interveners joining at the appeal stage only. An intervener intervening at the appeal stage could not be treated as an appellant because it does not fulfil the requirements of Art. 107, first sentence, EPC, in particular it has not been party to the earlier proceedings. The provisions governing the payment of the appeal fee were also silent about the possibility of payment of an appeal fee by a person who is not an appellant. Given that it is settled case law of the Enlarged Board that appeal proceedings cannot be continued where the (only) appellant has withdrawn the appeal, the intervener as opponent thus could not by their own motion continue the appeal proceedings. The board went on to highlight that on a purely literal and systematic interpretation, i.e. without taking into account the legislative intent as derivable from the travaux, Art. 107 EPC simply does not leave any room for interveners to be parties to appeal proceedings at all, be it as appellants, respondents or just other parties. This conclusion however directly contradicted settled case law of the Enlarged Board and the undisputed legislative intent behind Art. 105 EPC, as clearly set out in G 1/94. The board also noted that the conclusion of the Enlarged Board that "the valid intervener only acquires the status of an opponent" in G 3/04 plainly contradicts the provisions of Art. 107, second sentence, EPC, at least as long as "status of an opponent" is read as "status of an opponent who had been party to the proceedings leading to the appealed decision (but is not itself an appellant within the meaning of Art. 107, first sentence, EPC)". Still, it seemed clear that the Enlarged Board in G 3/04 understood an "opponent" in this sense. From this, it followed directly that procedural conditions that intend to put limitations on the party status in Art. 107 EPC could not apply to interveners, at least as long as the so far undisputed legislative intent is respected. At the very least, the requirement of a party status in the earlier proceedings could not hold for an intervener. This then begged the question why the other requirement for acquiring the party status of an appellant, namely the adverse effect, should apply to an intervener, or at the very least why it should be applied in strict combination with the party status in the earlier proceedings. Considering G 3/04, the board explained that it did not agree that Art. 105 EPC in combination with Art. 107 EPC must be read in the sense that also a third party intervening only at the appeal stage can never become more than a non-appealing opponent. Put differently, the board had serious doubts that an intervener, regardless of the state of proceedings would always have to be treated as no more than a non- appealing opponent. The board proposed that Art. 105(2) EPC should be interpreted as providing that an admissible intervention is to be treated as an opposition, and the intervener enters the proceedings with full rights as if it had been a party to the proceedings from the very beginning. Depending on the outcome of the appealed decision, the intervener should be given the choice of entering the proceedings in any party position open to them. In particular, they must be given the opportunity to file their own appeal in a given case, of course upon payment of the appeal fee. In the board's view, it followed that the intervener by advancing their grounds of opposition and by properly paying the opposition and appeal fee within the three- month time period of Art. 105 EPC should be entitled to continue the appeal proceedings even upon a withdrawal of the appellant's appeal. This result was however at odds with G 3/04. The board therefore referred the following points of law to the Enlarged Board: "[a]fter withdrawal of all appeals, may the proceedings be continued with a third party who intervened during the appeal proceedings? In particular, may the third party acquire an appellant status corresponding to the status of a person entitled to appeal within the meaning of Article 107, first sentence, EPC?"