T 1665/16 - Documents withdrawn intervention

Key points

• In this opposition appeal, there was an admissible Notice of intervention filed in the appeal stage; the Notice included documents E1-E20. The intervener withdrew his intervention during the appeal. The question is whether E1-E20 are admissible. 
• The Board: " Documents E1 to E20 were thus as a matter of fact part of the appeal proceedings even without there being a need for the exercise of discretion or a decision of the Board on the admittance of these documents into the proceeding." 
• "The withdrawal of the intervention [...] did not change the legal and factual status of documents E1 to E20. The withdrawal of the intervention only terminated the status of the intervener as opponent and party to the proceedings, but has no direct procedural consequences for the appeal proceedings as the original opponent, who had filed a valid appeal, remained party to the proceedings. The withdrawal of the intervention does not affect the legal validity of procedural acts like the filing of documents or other evidence carried out before the withdrawal of the intervention. In particular, the withdrawal of the intervention does not render the intervention retroactively inadmissible, since such a withdrawal has only the legal effect ex nunc. Consequently, contrary to the proprietor's/respondent's opinion, there is no legal basis for regarding documents E1 to E20, which have been filed in the context of an admissible intervention, as retroactivly late filed after the withdrawal of the intervention." 
• The case is remitted to the OD for consideration of E1-E20.

EPO T 1665/16 - link





2. Status of documents E1-E22

2.1 The intervention filed on 17 October 2017 (second intervention) has been timely filed within the three months time period after institution of the infringement proceedings, Rule 89(1) EPC. It also fulfils the requirements of Article 105 EPC and Rule 76 EPC. Documents E1 to E20 were annexed to the intervention of 17 October 2017. Since the intervention, apart from the requirements according to Article 105 and Rule 89(1) EPC, is not subject to any time limit, documents E1 to E20 have been filed as early as possible. Documents E1 to E20 were thus as a matter of fact part of the appeal proceedings even without there being a need for the exercise of discretion or a decision of the Board on the admittance of these documents into the proceeding. The Board in its communication of 29 January 2019 regarded the intervention filed on 17 October 2017 (second intervention) as admissible. The respondent/patent proprietor neither objected to the Board's opinion nor contested the admissibility of that intervention. The intervention is therefore admissible.

2.2 In G 3/04 (OJ EPO 2006, 118), the Enlarged Board concluded, inter alia, that the valid intervener acquired the status of an opponent, irrespective of whether the intervention occurred during the proceedings before the opposition division or at the appeal stage (Case Law of the Boards of Appeal, 8th Edition, July 2016, IV.C.3.2.1). Furthermore, the Enlarged Board ruled that if the intervention was filed during the appeal proceedings, as it is the case in the present appeal, the intervener, because he could only acquire the status of an opponent, had the same rights and obligations - apart from the right to raise new grounds of opposition - as any opponent who had not filed an appeal.

2.3 With the valid filing of the notice of opposition with the intervention, the factual and legal framework of the present opposition in appeal was defined by the sum of the facts and statements of the extent to which the patent was opposed and by the grounds for opposition submitted and substantiated in the notices of opposition provided by each opponent. In that regard, the documents E1-E20 filed by the opponent/intervener were added to the proceedings alongside document D1 filed by the original opponent.

2.4 The withdrawal of the intervention with letter of 9 April 2019 did not change the legal and factual status of documents E1 to E20. The withdrawal of the intervention only terminated the status of the intervener as opponent and party to the proceedings, but has no direct procedural consequences for the appeal proceedings as the original opponent, who had filed a valid appeal, remained party to the proceedings. The withdrawal of the intervention does not affect the legal validity of procedural acts like the filing of documents or other evidence carried out before the withdrawal of the intervention. In particular, the withdrawal of the intervention does not render the intervention retroactively inadmissible, since such a withdrawal has only the legal effect ex nunc. Consequently, contrary to the proprietor's/respondent's opinion, there is no legal basis for regarding documents E1 to E20, which have been filed in the context of an admissible intervention, as retroactivly late filed after the withdrawal of the intervention. Since there is no legal basis in the EPC that foresees the exclusion of documents from continuing opposition proceedings when one of the oppositions is withdrawn, the documents E1-E20 submitted by the opponent/intervener with the notice of opposition remain in the proceedings and have to be taken into account in the Board's decision.

2.5 As the Board has no discretion not to admit documents E1 to E20 in the proceedings, the request not to admit these documents must be refused.