The Enlarged Board of Appeal of the European Patent Office (EPO) has received a new referral under the case number G 2/24 (“Skin cleanser”), addressing a critical procedural issue in European patent law: the legal status and procedural rights of third-party interveners in appeal proceedings after the withdrawal of all pending appeals.
In decision T 1285/23, issued on 11 November 2024, Technical Board of Appeal 3.2.04 referred two key questions to the Enlarged Board of Appeal under Article 112(1)(a) EPC and Article 21 of the Rules of Procedure of the Boards of Appeal (RPBA):
Main Question:
After withdrawal of all appeals, may the proceedings be continued with a third party intervener during the appeal proceedings? In particular, must the third party acquire appellant status corresponding to the status of a person entitled to appeal within the meaning of Article 107, first sentence, EPC?
The referral arises from a case in which a third party, having initiated national court proceedings based on alleged infringement, sought to intervene in the appeal after all other parties had withdrawn. The third party had not participated in the opposition proceedings and relied on Article 105 EPC to enter as an intervener.
Key Issues Referred to the Enlarged Board
The referral seeks clarification on:
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Whether such intervention is admissible under the EPC after all appeals have been withdrawn;
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Whether the intervening party must pay an appeal fee and formally acquire the status of appellant to continue the proceedings.
These questions are of major importance for legal certainty in European patent opposition and appeal proceedings, especially where parallel infringement litigation triggers late-stage interventions.
Comments from the EPO President
In a detailed opinion submitted by EPO President António Campinos, the EPO supports the admissibility of such referrals and reaffirms the significance of third-party intervention under Article 105 EPC.
Key takeaways from the President’s opinion include:
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Intervention as an Extraordinary Tool: Intervention is designed as an exceptional legal instrument to allow alleged infringers to defend their position centrally at the EPO even after the opposition period has expired.
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Distinct Purpose of Article 105 vs. Article 107 EPC: While Article 107 EPC governs who may appeal, Article 105 EPC creates an independent right to intervene during pending proceedings. Thus, interveners need not necessarily acquire appellant status.
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Support for Continuation After Appeal Withdrawal: The opinion leans toward allowing properly filed interventions to continue the proceedings even after all appeals are withdrawn, affirming that the rights of interveners should not be extinguished by the procedural acts of appellants.
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Payment of Appeal Fee: The President suggests that an appeal fee should be paid when intervention occurs at the appeal stage, aligning with decision T 1016/10.
Conclusion and Anticipated Impact
As summarized in the concluding section of the President’s submission:
“The EPC 1973 legislator grants third parties the right to intervene in pending opposition or appeal proceedings… Taking account of the legislative intention and , which is regarded as a leading decision if followed, it seems reasonable to assume that third parties intervening in appeal proceedings should be awarded an effective procedural position. This could be achieved, for example, by applying Article 105(2) EPC mutatis mutandis. The referred question seeks to revisit G3/04 and thus raises a number of legal and procedural issues. A decision of the Enlarged Board of Appeal is required to clarify the situation.”
The outcome of G 2/24 is expected to bring long-awaited legal certainty to third parties seeking to intervene in European patent disputes. It may also influence future litigation strategies where national infringement proceedings coincide with EPO opposition cases.
