T 0872/13 - Strawman opponent and acceleration appeal

Key points

• The opponent asks for acceleration of the appeal. The opponent is "Strawman Limited". The opponent submitted that: "The real party of interest behind the opponent Strawman Limited was CSL Limited, which was developing a recombinant Factor VII- albumin fusion protein and therefore needed certainty to continue its development activities in view of the large sums involved. Any decision of CSL Limited as a potential licensee under the patent depended on the outcome of the appeal proceedings, and thus the request for accelerated proceedings should be granted as falling within one of the examples given in tOJ 2008 p.220].
• The Board denies the reuest. "As to the appellant-opponent's second request for acceleration, the board noted that the party requesting acceleration, the appellant-opponent, had not argued that it had itself a legitimate interest in the proceedings being dealt with rapidly. The interests on which the request for acceleration were based concerned the company CSL Limited. This company was however not a party to the present appeal proceedings and the board saw no reason why the interests of this third party should be attributed to the appellant-opponent." 
• This shows a disadvantage of a strawman opponent. 

EPO T 0872/13 - link

XVII. The arguments of the appellant-opponent, in so far as they are relevant to the present decision, may be summarised as follows:

Request for accelerated proceedings

The patent was causing uncertainty and hampering investment and development decisions by interested parties (first request for acceleration presented with the statement of grounds of appeal). The real party of interest behind the opponent Strawman Limited was CSL Limited, which was developing a recombinant Factor VII- albumin fusion protein and therefore needed certainty to continue its development activities in view of the large sums involved. Any decision of CSL Limited as a potential licensee under the patent depended on the outcome of the appeal proceedings, and thus the request for accelerated proceedings should be granted as falling within one of the examples given in the Notice from the Vice-President DG3 of 17 March 2008 (OJ EPO 2008, 220; second request for acceleration of the appeal proceedings).

3. Request for accelerated processing of appeal proceedings

3.1 Parties with a legitimate interest may ask the boards of appeal to deal with their appeals rapidly, and the boards can speed up an appeal as far as the procedural regulations allow (see Notice from the Vice-President Directorate-General 3 dated 17 March 2008 concerning accelerated processing before the Boards of Appeal, "Notice", OJ EPO 2008, 220, first paragraph).

3.2 With regard to the appellant-opponent's first request for accelerated processing of the appeal proceedings, the board could not accede to this request since the reason provided by the appellant-opponent that the patent was "causing uncertainty and hampering investment and development decisions by interested parties" was a general statement and not particularly related to a party to the proceedings.

3.3 As to the appellant-opponent's second request for acceleration, the board noted that the party requesting acceleration, the appellant-opponent, had not argued that it had itself a legitimate interest in the proceedings being dealt with rapidly. The interests on which the request for acceleration were based concerned the company CSL Limited. This company was however not a party to the present appeal proceedings and the board saw no reason why the interests of this third party should be attributed to the appellant-opponent.

3.4 Moreover, the reference to the second example of the Notice concerning accelerated processing did not apply in the present circumstances. The wording of the second example suggests that it relates to a situation in which the party requesting acceleration is the patent proprietor and not an opponent. In any case, however, no documents were presented to the board to support the contention that the decision of a potential licensee of the patent in suit hinged upon the outcome of the present appeal proceedings.

3.5 Therefore, on the basis of the submissions of the appellant-opponent, the board could not establish that the appellant-opponent had a legitimate interest in the case being dealt with rapidly. Hence, the board decided not to accelerate the present appeal proceedings.