Thursday, November 28, 2024 New referral - G 2/24 "Skin cleanser" by T 1286/23 dd 11-11-2024

Today, decision T 1286/23 was made available online, referring questions to the Enlarged Board. Under Article 112(1)(a) EPC and Article 21 RPBA the following points of law are referred to the Enlarged Board of Appeal for decision:
After withdrawal of all appeals, may the proceedings be continued with a third party who intervened during the appeal proceedings? In particular, may the third party acquire an appellant status corresponding to the status of a person entitled to appeal within the meaning of Article 107, first sentence, EPC?
The case is ending as G 2/24 "Skin cleaner".

Monday, January 04, 2021 R 10/18 - No obligation for a Board to discuss irrelevant arguments

Did they miss your submission, or was it not relevant?

The Enlarged board considers the catchword of R 8/15. Catchword 1 of that decision reads (in part, emphasis added): 

(...) One aspect of the right to be heard as covered by Article 113(1) EPC requires a board to consider a party's submissions, i.e. assess the facts, evidence and arguments submitted as to their relevance and correctness. Article 113(1) EPC is infringed if the Board does not address submissions that, in its view, are relevant for the decision in a manner adequate to show that the parties were heard on them, i.e. that the Board substantively considered those submissions. (...)

In this case, a potential issue with this rule is considered. If you don't see your arguments back in the decision then either: the board did not consider your arguments, or the board did consider them but found them to be irrelevant. The former case would infringe the right to be heard, while the latter would not. But how is an appellant to know which of these two options was the case?

The Enlarged board seems sympathetic to this view, but concludes that if you don't see a submission in the decision, then apparently it was not relevant. It leaves the door open though if there are indications to the contrary. 

This case R 10/18 provides the following catchword:

1. One aspect of the right to be heard as covered by Article 113(1) EPC requires a board to consider a party's submissions, i.e. assess the facts, evidence and arguments submitted as to their relevance and correctness.

Article 113(1) EPC is infringed if the board does not address submissions that, in its view, are relevant for the decision in a manner adequate to show that the parties were heard on them, i.e. that the board substantively considered those submissions. (See Reasons, point 2.1.1, affirming the relevant part of catchword 1 of R 8/15).

2. A board is presumed to have taken into account a party's submissions that it did not address in the reasons for its decision, meaning that it, first, took note of them and, second, considered them, i.e. assessed whether they were relevant and, if so, whether they were correct.

An exception may apply if there are indications to the contrary, e.g. if a board does not address in the reasons for its decision submissions by a party that, on an objective basis, are decisive for the outcome of the case, or dismisses such submissions without first assessing them as to their correctness. (See Reasons, point 2.1.1.2).

Wednesday, January 09, 2019 T 384/15 - Intervention another company from the same group as the opponent: admissible?

Opposition appeal proceedings were pending with a single opponent, Santarelli SA. Early during the appeal proceedings, a first intervention was filed by a first assumed infringer, Bose Gmbh. At a later moment during ther appeal proceedings, a second intervention was filed by a second assumed infringer, Bose Limited. The proprietor objected to the interventions by Bose Gmbh and Bose Limited as both belong to the same group as Santarelli SA, and submitted that these two intervenors were not third parties and that the filed interventions were abuse of law, as a consequence of which the interventions (as well as the opposition) should be considered inadmissible. The Board did not agree. The Board and that the interveners are "third parties", and also that the invoking Article 105 EPC had not been an attempt by the opponent and/or interveners to circumvent the law by abuse of process. The Board held the opposition and both interventions admissible.

Friday, June 29, 2018 T 0384/15 Circumvention via straw man must always be proven

In this opposition appeal case, the decision to reject the opposition was appealed by the opponent, Santorelli SA. In appeal, a notice of intervention was filed by a first intervener, Bose GmbH. The proprietor requested that the intervention be found inadmissible for the reason that Santarelli was a straw man acting on behalf of Bose, meaning that the opponent and the intervener were one and the same. Bose GmbH denied any involvement in the opposition prior to its intervention, which was held to be admissible. Subsequently, a second intervener Bose Ltd filed a notice of intervention.

The patent proprietor requested that the original opposition be held inadmissible and, if the Board did not accede, further requested that a question be referred to the Enlarged Board: "If evidence clearly indicates that a strawman opponent is acting on behalf of a party who intervenes in opposition proceedings, is the involvement of the opponent to be regarded as circumventing the law by abuse of procedure (cf. G 3/97 and G 4/97), the consequence of which being that the opposition is inadmissible?"

The Board agreed with the proprietor that any intervener must be a different party from the opponent in order to be a third party in the meaning of Art 105(1), and that even when the interveners are "third parties", it still has to be considered whether there has been an attempt by the opponent and/or interveners to circumvent the law by abuse of process and thus whether there are grounds for holding the opposition and/or interventions inadmissible.

The Board concluded that the three opponents were separate parties and was able to decide on the available facts that the interventions were admissible and thus also the original opposition, given that the proprietor had submitted no proof that the interveners were in fact the principals instructing the original opponent.

The request for a referral to the Enlarged Board was denied.

Friday, May 11, 2018 T 1746/15 Proceedings to find evidence of infringement ≠ “infringement proceedings”

In opposition proceedings against the European patent in this case, the Division admitted an intervention on the basis that the patent proprietor had, in Germany, instituted independent evidentiary proceedings (BSV proceedings) against the intervener, whereby a court-appointed inspector is empowered to take evidence of possible infringement. The patent was revoked in opposition for lack of novelty. This decision was appealed by the proprietor, who also  requested that the intervention be found inadmissible.

The patent proprietor argued that BSV proceedings are comparable to "saisie" proceedings in France, which, according to Case Law, do not qualify as "proceedings for infringement" in the meaning of Art. 105(1)(a). The intervener argued that BSV proceedings are not comparable to "saisie" proceedings, but are more akin to Belgian seizure proceedings, which had been held to qualify as proceedings for infringement.

The Board concluded that BSV proceedings are different from both "saisie" proceedings and the Belgian seizure proceedings, but do not qualify as proceedings for infringement because they do not constitute the establishment of an infringement. The intervention was therefore held to be inadmissible. The Board upheld the decision to revoke the patent for lack of novelty.