T 2904/19 - Intervention in appeal period

Key points

• An intervention was filed under Art.105: “The decision under appeal was announced at the end of the oral proceedings held before the opposition division on 12 June 2019. Two days later, on 14 June 2019, the intervention of an assumed infringer according to Article 105 EPC was filed. The intervention meets the formal requirements and is substantiated and therefore is seen as admissible in the sense of Rule 89 EPC. In accordance with G 4/91, point 6 of the reasons, in this particular situation where an intervention is filed after the opposition division announced its decision and where a party to the opposition proceedings files an appeal, the notice of intervention will be deemed to be filed in appeal proceedings, see also T 791/06 of the same Board in different composition, point 2.2 of the reasons. 
  ... Therefore, the Board concludes that the intervention cannot be rejected and that it forms part of the proceedings.
• The patentee is the respondent and filed new AR's with its Appeal Reply Brief. The Board: "In the case at hand, new matters have been raised in view of the notice of intervention, which was filed after oral proceedings before the opposition division were held. The respondent was thus not in place of reacting to these new matters during opposition proceedings with arguments and/or auxiliary requests. The Board concludes that due to the course of the opposition proceedings and the subsequent intervention, the filing of auxiliary requests 1 to 14 with the reply to the statement of grounds of appeal and to the intervention, where the respondent is required to form its complete appeal case in the sense of Article 12(3) RPBA 2020, was, in the present case, an appropriate point of time to present the auxiliary requests. In view of these particular circumstances, the Board, exercising its discretion under Article 12(4) RPBA 2007, admits auxiliary requests 1 to 14 into the appeal proceedings."
• The Board deals with the attacks of the opponent/appellant. "It follows that the appellant has not provided admissible objections and/or convincing arguments that would demonstrate that the subject-matter of claims 1 and 9 according to auxiliary request 7 lacks an inventive step in the sense of Article 56 EPC."
• However, "The intervener confirmed that it had objections to the claimed subject-matter of auxiliary request 7 other than the appellant's objections. The intervener also requested that the case be remitted to the opposition division"
• The Board remits the case taking into account that the Board "concludes that new facts, evidence, arguments and objections filed with the intervention, in combination with the new auxiliary requests filed by the respondent cannot be decided without an undue burden for all parties and the Board, amount to special reasons in the meaning of Article 11 RPBA 2020 that, hence, justify a remittal to the opposition division for further prosecution."

EPO T 2904/19

The link to the decision is provided after the jump.

https://www.epo.org/law-practice/case-law-appeals/recent/t192904eu1.html