T 1569/11 - No appeal against reasons only

T 1569/11

For the decision, click here

Key point

• In this case, the Opponents had tried to appeal a decision to revoke the patent, because the OD had revoked the patent only on the ground of Art. 100(b) EPC and not (also) under Art. 100(c) EPC. These appeals were, of course, inadmissible. The Opponents are respondents (parties as of right) only. 
" Thus, the opponents I and III do not seek to challenge the decision of the Opposition Division (i.e. revocation of the patent) but the reasons within the decision. In particular, the opponents wish to see the patent found invalid under Article 100(c) EPC. In doing so they misunderstand the nature and purpose of opposition appeal proceedings [...] "
• Both Opponents were represented by European patent attorneys of two of the larger firms. 

Reasons for the Decision

1. Admissibility of the appeals of the opponents I and III

1.1 An appeal is open to any party adversely affected by a decision (Article 107 EPC). The decision of the opposition division was to revoke the patent. In this sense the decision was fully consistent with the request of the opponents in the opposition procedure that the patent be revoked in its entirety. The opponents I and III were thus not adversely affected by the decision. Therefore, the appeals of opponents I and III are inadmissible.

1.2 It may be noted that it is irrelevant in this context that maintenance of the patent was not found to be prejudiced by the ground of opposition under Article 100(c) EPC, on which the opponents had failed to convince the opposition division, since it was found to be prejudiced by the ground of opposition under Article 100(b) EPC. Thus, the opponents I and III do not seek to challenge the decision of the Opposition Division (i.e. revocation of the patent) but the reasons within the decision. In particular, the opponents wish to see the patent found invalid under Article 100(c) EPC. In doing so they misunderstand the nature and purpose of opposition appeal proceedings which are not to re-examine a patent but to decide whether or not a first instance decision is correct (cf. T 854/02 point 3.2 of the reasons; T 437/98, OJ 2001, 231, point 2.2 of the reasons; T 193/07, point 2.3 of the reasons).

1.3 However, all the opponents have the status of respondents (parties as of right) in accordance with Article 107 EPC. Although the opponents OI and OIII had filed their submissions as grounds of appeal, and ultimately these appeals were found to be inadmissible by the Board, does not detract from the fact that the essence of the opponents' submissions is unambiguous in challenging a particular part of the decision where the opposition division had found in favour of the proprietor. As stated in the Board's communication issued under Article 15(1) RPBA, the objections made by the opponents OI and OIII (in their status as respondents) are simply to be considered as those of respondents in the admissible appeal of the proprietor.