(i) Patent proprietor adversely affected
In T 457/89, by analogy with G 1/88 (OJ 1989, 189), the board took the view that the appellant (patentee) was adversely affected by the decision revoking his patent, despite failing to comment on a communication within the time specified in an opposition division's invitation under Art. 101(2) EPC 1973. For, according to G 1/88, wherever non-compliance could lead to loss of rights, the EPC 1973 always expressly indicated this and Art. 101(2) EPC 1973 made no provision for any loss of rights.
In T 537/05 the appellant was held adversely affected by the decision under appeal granting the patent in an amended form on the basis of the appellant's main request, because this request was not submitted until after the opposition division had 'decided' that the subject-matter did not meet the requirements of Art. 56 EPC 1973. Giving the wording its true meaning, the opposition division had thus revoked the patent, its actions after the decision were ultra vires, and the patent proprietor thus adversely affected and entitled to appeal.
(ii) Patent proprietor not adversely affected
In T 73/88 (OJ 1992, 557) the board ruled that if a patentee's request that his patent be maintained was upheld by a decision of the opposition division, he could not appeal against adverse reasoning in the decision (here, regarding his claim to priority) because he was not adversely affected by it within the meaning of Art. 107 EPC 1973.
One of the principles representing the fundamental value of legal procedural certainty was that a party was not to be regarded as adversely affected within the meaning of Art. 107 EPC 1973 by a decision which granted his final request. A request under R. 88 EPC 1973 for correction of a document as the sole reason for the appeal was inadmissible (T 824/00, OJ 2004, 5). In this case the proprietor had requested correction under R. 88 EPC 1973 of his letter withdrawing all requests (see also T 961/00 and J 17/04).
In T 528/93 a request was withdrawn during opposition proceedings and was thus not the subject of the contested decision. The board decided that a virtually identical request filed during appeal proceedings was not the subject of the appeal, because the appellant was not adversely affected by the decision of the opposition division as far as this request was concerned.
In T 327/13 the board found that, to establish whether a party has been adversely affected by a decision, it is not enough to consider the end result in isolation, but to consider the party's complete case, as is defined in Art. 12(2) RPBA 2007, in conjunction with the substance of the decision. Although the board noted that it was clear that the appellants were adversely affected by the opposition division's decision not to accede to the then main request, the decision had not been contested with the appeal. The board therefore concluded that they could not be regarded as "adversely affected" under Art. 107 EPC.
The argument that the discovery of a prior art disclosure in national proceedings meant that the patent proprietor had subsequently become adversely affected was rejected in T 591/05 – by granting the patent the department of first instance had acceded to the then valid request of the appellant.
In T 332/06 the patent proprietor's appeal was admissible at the time it was filed but became inadmissible when the statement of grounds was received, as the patent proprietor only contested that portion of the decision relating to the claims for the contracting state DE. These claims, had been allowed by the opposition division for DE but rejected with respect to the remaining contracting states. The patent proprietor was therefore not adversely affected with respect to DE.
In T 1783/12 the opposition division had refused the main request that the opposition be rejected as inadmissible. The appellant had therefore been adversely affected by this procedural aspect of the decision under appeal. However its statement of grounds of appeal had not set out why this aspect should be set aside, instead explicitly addressing only why the patent should be maintained as granted. Moreover, at first instance it had requested the maintenance of the patent in amended form as per the first auxiliary request filed at the oral proceedings, and this request had been granted. Summing up, the board held that at the relevant point in time under Art. 108 EPC – the filing of the statement of grounds of appeal – (a) no reasons had been given why the decision not to reject the opposition as inadmissible should be set aside; and (b) the substantive request for the maintenance of the patent as granted did not result from an adverse effect within the meaning of Art. 107 EPC. The appeal was therefore inadmissible.
In T 611/15 the opposition division maintained the patent in amended form based on auxiliary request VIII. The proprietor had argued that it had withdrawn only the auxiliary requests filed in writing before the oral proceedings, not the main request. However, the minutes stated that the representative of the proprietor announced that he would withdraw all other requests so that auxiliary request VIII as filed during the oral proceedings represented the main and sole request of the proprietor. In the absence of any request for correction of the minutes, the board assumed that these statements accurately reflected the state of the proprietor's requests. Given that the decision on this request was in favour of the proprietor it followed that the proprietor was not adversely affected by the decision.