|European Case Law Identifier:||ECLI:EP:BA:1986:T011085.19860806|
|Date of decision:||06 August 1986|
|Case number:||T 0110/85|
|Decision of the Enlarged Board of Appeal:||G 0001/86|
|IPC class:||E21C 35/00|
|Language of proceedings:||DE|
|Download and more information:||
|Title of application:||-|
|Headnote:||The Enlarged Board of Appeal shall decide whether the opponent as appellant may have his rights re-established if he fails to observe the time limit for filing the statement of grounds for appeal.|
|Relevant legal provisions:||
|Keywords:||Re-establishment of rights of appellant as opponent|
Summary of Facts and Submissions
I. In an interlocutory decision dated 1 March 1985 and open to appeal the Opposition Division of the European Patent Office found that there were no grounds for opposing maintenance of European patent No. 10534 as amended under Article 100 EPC.
II. On 27 April 1985 one of the three opponents (appellant I) filed an appeal, at the same time paying the fee for appeal and submitting a statement of grounds. On 10 April 1985 a second opponent (appellant II) filed an appeal and paid the fee. No appeal was lodged by the third and final opponent.
III. By letter dated 8 August 1985 a Board of Appeal registrar informed appellant II that it had not filed a statement of grounds within the time limit specified in Article 108 EPC.
IV. On 5 October 1985 appellant II filed an application for re- establishment of rights accompanied by a statement of grounds. The fee for re-establishment was paid at the same time.
V. In a communication sent pursuant to Article 110(2) EPC on 28 May 1986 the Board of Appeal informed the parties that it intended of its own motion to refer to the Enlarged Board of Appeal the question of whether an opponent as appellant could have his rights re-established in respect of an unobserved time limit for filing a statement of grounds for appeal, even though only the patent applicant and patent proprietor are mentioned in Article 122 EPC. Although under Article 107, second sentence, appellant II is also a party to the appeal proceedings, this is nevertheless dependent on appellant I maintaining its appeal. It is therefore especially important to appellant II that this matter be settled.
VI. Appellant I and the third opponent indicated in reply that they would not comment on the matter, and appellant II expressed agreement with the Board's proposal.
VII. Whilst not commenting on the points of law at issue the respondent said that the inevitable delay in the proceedings would result in an unjustified disadvantage for it as patent proprietor.
Reasons for the Decision
1. Whether or not the appeal filed by appellant II is admissible depends on whether the application for re-establishment in respect of the time limit for filing the statement of grounds for appeal can be allowed. In the present case this depends solely on whether or not the opponent can be granted re-establishment. The application is both admissible and states the grounds on which it is based.
2. Under Article 112(1)(a) EPC a Board of Appeal may of its own motion or following a request from a party to the appeal, refer any question to the Enlarged Board of Appeal if it considers that an important point of law needs to be clarified.
3. Clearly the question of whether the opponent can have his rights re-established needs to be clarified not just because it is important to the present appeal but also because it is of considerable general significance in that it involves a point of law of fundamental interest which, therefore, must be settled once and for all.
For these reasons, it is decided that:
in accordance with Article 112(1)(a) EPC in conjunction with Article 17 of the Rules of Procedure of the Boards of Appeal (OJ EPO 1/1983, p. 11) the following point of law shall be referred to the Enlarged Board of Appeal for a decision: "Can an appellant as opponent have his rights re-established under Article 122 EPC if he has failed to observe the time limit specified in Article 108, third sentence, EPC for filing the statement of grounds for appeal?"