2.5.2 Question déjà en instance devant la Grande Chambre de recours

In T 0417/22 an intervention had been filed in August 2024. The intervener had stated that the grounds filed with their intervention constituted grounds for both opposition and appeal. In May 2025, opponent 1 and the patent proprietor withdrew their appeals. The intervener's final main request was that the board stay the proceedings and wait for the outcome of referral G 2/24. The first auxiliary request was that the board refer the same question on the status of the intervener to the Enlarged Board of Appeal (hereinafter referred to as "EBA"). The second auxiliary request was that the board remit the case to the opposition division for further prosecution. The patent proprietor's final main substantive request was that the proceedings be terminated by application of the principles derivable from G 3/04.

The board examined the procedural options available to it. In this context, the board emphasised that there was a pending appeal that the board needed to decide on, even if the decision may only concern the admissibility of the appeal. According to the board, even if it were to grant the patent proprietor’s request and decide to follow the interpretation given by G 3/04, it could not close the proceedings without issuing a formal decision..

Furthermore, the board agreed with the referring board of T 1286/23 that the guiding decision G 3/04 may require revision. The board found that while it was procedurally straightforward for it to make a referral to the EBA for the purpose of reviewing G 3/04, pursuant to Art. 21 RPBA, in view of pending referral G 2/24, the board had an additional option. Rather than referring the case itself, the board could stay the proceedings until the outcome of pending referral G 2/24 is known. The board observed that, despite the lack of an explicit legal basis, staying the proceedings appeared to be a reasonable and pragmatic solution given that the board's own referral would cause more problems without achieving any procedural benefit. It also noted that the case law recognised the stay of the proceedings as a viable procedural option for a board in the event of a pending referral. Furthermore, the board was not aware of any case law that categorically denied the procedural possibility of staying the appeal proceedings as a matter of principle, nor had the parties pointed to any such case law.

The board stated that if it deemed it justified to revise a decision or opinion of the EBA under Art. 112 EPC, and if the referral was expected to address the same legal issues that the board would refer to the EBA, then staying the proceedings offered significant procedural advantages over the board's own referral under Art. 112(1) EPC and Art. 21 RPBA. Therefore, the board concluded that, under the right circumstances, staying proceedings in view of an already pending referral was a legitimate alternative to the board's own referral. As such, it was implicitly covered by Art. 21 RPBA as a legally correct procedure where a board intended to deviate from an interpretation of the EPC given in an earlier decision or opinion of the EBA.

Accordingly, the board held that it effectively had the three procedural options discussed during the proceedings. The board could issue a decision without delay on the basis of the principles derivable from G 3/04, thereby effectively dismissing the intervener's appeal as inadmissible and terminating the substantive proceedings. Alternatively, the board could make a further referral to seek a change to the interpretation of the law given in G 3/04. Further, the board could stay the proceedings until the pending referral G 2/24 answered the question of whether and how an intervener joining the appeal proceedings may obtain appellant status within the meaning of Art. 107 EPC. As neither the parties nor the board itself favoured the board's own referral, there was no need to discuss in detail all the conditions for such a referral. Instead, the board had to choose between staying the proceedings and applying G 3/04 unreservedly. For this, it was sufficient for the board to establish that a hypothetical referral would fulfil the requirements of Art. 112(1)(a) EPC for essentially all the reasons provided in the referring decision T 1286/23, given the relevant similarities between the cases.

After having provided reasons for deviating from G 3/04, the board stated that it saw no convincing substantive argument supporting the patent proprietor's proposition that the case before the board would be less suitable for the board's own referral than the case underlying the decision T 1286/23. Upon weighing up the interests of the parties, the board concluded that it was more equitable to stay the proceedings, which resulted in limited disadvantages for both parties, but did not affect their substantive position in the opposition proceedings. The appeal proceedings were thus stayed until the proceedings in referral G 2/24 are terminated.