Opposition Procedure Before The European Patent Office - Intervention and Observations By Third Parties

Intervention and Observations By Third Parties

Under Article 105 EPC, any third party may intervene in opposition proceedings after the 9-month opposition period has expired, if the third party proves that "(a) proceedings for infringement of the same patent have been instituted against him, or (b) following a request of the proprietor of the patent to cease alleged infringement, the third party has instituted proceedings for a ruling that he is not infringing the patent." The admissibility of an intervention is subject to conditions. The so-called notice of intervention must notably be filed within three months of the date on which proceedings referred to in Article 105 are instituted. An admissible intervention is treated as an opposition. If the intervention is admissible, the intervener becomes party to the opposition proceedings.

The possibility to intervene not only exists during pending opposition proceedings before an Opposition Division (i.e., during the first instance proceedings), but also during subsequent pending appeal proceedings before a Board of Appeal (i.e., during the second instance proceedings).

Independently from the possibility to intervene in opposition proceedings (and then to become party to the proceedings), anyone may also file observations under Article 115 EPC. After publication of a European patent application, and a fortiori after grant of a European patent, anyone may file observations regarding the patentability of the invention which is the subject of the application (during examination proceedings) or patent (during opposition proceedings). In contrast to an intervener however, a person filing observations during opposition proceedings does not become party to the proceedings. This notably means that such person does not acquire the "bundle of procedural rights" created "in respect of the opponent", such as the right to be heard before any decision is taken. Observations by third parties, which must be filed in writing, may be filed by post or online. According to Board of Appeal 3.3.08, the observations have to be signed "in order to allow an identification of the third party" and, unless "adopted by a party to the proceedings as its own" or by the competent organ of the EPO of its own motion, "anonymous third party observations are to be disregarded altogether."