1.5. Accelerated processing before the boards of appeal

Parties with a legitimate interest may ask the boards of appeal to deal with their appeals rapidly (see Notice from the Vice-President Directorate-General 3 dated 17 March 2008 concerning accelerated processing before the boards of appeal (OJ 2008, 220)).

The appellant (patentee) in T 734/12 requested acceleration of the appeal proceedings on the basis of three arguments: the possibility of remittal; the suggestion that the decision under appeal related to an important point of law the resolution of which might take additional time; and the commercial and medical importance of the patented and approved treatment. In the board's opinion these reasons did not in themselves justify acceleration. Whilst acceleration had been acknowledged as appropriate when infringement proceedings were threatened or pending, which was not the case here. However, it was clear there was a substantial measure of agreement between the parties and the public had an interest in the early resolution of disputes. The interests of the parties and of the public would therefore best be served by an expedited procedure.

In T 895/13 of 28 March 2014 the board confirmed that acceleration is always a matter for the exercise of the board's discretion. While trivial reasons would clearly not warrant acceleration, there was no fixed standard of proof. Acceleration is not limited to the examples given in the Notice, but is a matter to be decided in the discretion of the board on the particular facts of the case before it. It was clear in the case at issue that the board could have accelerated the procedure ex officio under the notice, in view of the disadvantage which could ensue before the Belgian courts from the suspensive effect of the appeal in question. If the board could allow acceleration on that basis of its own motion, it could clearly do so on the request of a party (in this case the respondent (opponent)). The board ordered the appeal proceedings to be accelerated. It added that its views related only to the particular facts of this case and the co-pending appeal in T 1125/13 of 28 March 2014 between the same parties and were not intended to set any precedent for application beyond those facts.

In T 239/16 the board allowed acceleration. The board stated that according to the notice trivial reasons would clearly not justify acceleration. It followed from the scenarios in the notice that the term "legitimate interest" was not to be construed as requiring compelling reasons. Rather, objective reasons had to be put forth that warranted giving the appeal priority. Of course, the reasons invoked must be weighed against any disadvantage which might possibly ensue from granting accelerated proceedings. In the case in hand, in support of their requests for accelerated processing, the appellants (opponents) argued that infringement proceedings had been brought against their affiliates in France. The board was satisfied that the appeal proceedings at issue had a bearing on the infringement proceedings in France even if the appellants were not party to the infringement proceedings in France. See also T 1868/16 where the board allowed acceleration on the grounds that arbitration proceedings had been brought against an affiliate company in Portugal.

See also chapter IV.C.7. "Acceleration of opposition proceedings in the case of pending infringement proceedings".

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