3.3. ‍‍Article 112a(1) EPC – adversely affected party entitled to file a petition for review

Under Art. 112a(1) EPC, any party adversely affected by the decision of a board may file a petition for review.

In the case underlying R 1/11, the patent had been transferred and the transferee had filed an appeal against the decision of the opposition division to revoke the patent. The transfer of the patent had, however, not been registered in line with R. 22 EPC before the expiry of the period for filing the notice of appeal. Therefore, the decision under review had rejected the transferee's appeal as inadmissible. The transferor's appeal, filed after the expiry of the period for filing a notice of appeal, had also been considered inadmissible. Both the transferee and the transferor filed a petition for review. The Enlarged Board held that the requirement of Art. 112a(1) EPC that the petitioner be adversely affected for a petition to be admissible was fulfilled with respect to the transferee, irrespectively of its party status before the board of appeal, since the adverse effect resulted from the refusal to acknowledge that it had the status of appellant (his petition was, however, considered clearly unallowable in the end). The transferor's petition, on the other hand, was considered clearly inadmissible because, not being the current proprietor, the transferor was not adversely affected by the impugned decision.

In R 4/18 the Enlarged Board held that minutes were not considered to be a decision. It did not see how the use of the word “conclusion” instead of “preliminary view” in the context of the minutes of an oral proceeding could transform those minutes into a decision, noting that the appeal proceedings had been terminated by the appellant's (petitioner in the case in hand) withdrawal of the appeal in the proceedings under review. The Enlarged Board noted that it was the common practice of the boards to express views or conclusions on the substantive issues before them during the course of the oral proceedings. A decision on the case is then made at the end of the oral proceedings. See also chapter V.A.2.2. "Appealable decisions".

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