T 1820/18 - Relying on other opponent's evidence

Key points

•  Fun with multiple opponents (and joint opponents, but that's less relevant).
• "In the present appeal proceedings, joint opponents 1 [former respondent] took an active part, whereas opponent 2 (respondent) did not file any requests or submissions in the written proceedings. The day before the scheduled oral proceedings [] joint opponents 1 withdrew their opposition []. At the oral proceedings, the respondent [opponent 2] indicated that it intended to rely on the submissions of former joint opponents 1. The appellant [patentee] objected to this, arguing that presenting requests and arguments and raising objections for the first time at the oral proceedings was too late and that none of these submission should be admitted." 
• " According to Article 99(3) EPC, opponents are parties to the opposition proceedings as well as the proprietor of the patent. It is clear from this provision that several admissible oppositions do not initiate a corresponding number of parallel opposition proceedings, but only a single set (T 270/94, point 2.1 of the Reasons; T 656/94, point 7 of the Reasons; T 620/99, point 1 of the Reasons). All grounds of opposition raised by the various opponents, as well as the facts, evidence and arguments presented by them, form the legal and factual framework within which the substantive examination of the opposition is to be conducted. 
• " None of the parties involved in the opposition proceedings can be prevented from adopting facts, evidence and arguments presented in due time by another party (T 270/94, point 2.1 of the Reasons; T 620/99, point 1 of the Reasons; T 863/96, point 2 of the Reasons; see also T 154/95, point 2 of the Reasons: even documents originating from an opposition that has been declared inadmissible are allowed [)." 
• " The same applies to opposition-appeal proceedings. All parties to the opposition proceedings are necessarily parties to any subsequent appeal proceedings (Article 107 EPC). It is therefore not possible to split the appeal proceedings into different procedures, each dealing separately with the grounds for opposition and the facts, evidence and arguments presented by the individual opponent concerned (T 790/03, point 2.1 of the Reasons). Therefore, each opponent can rely on any grounds, facts, evidence and arguments duly submitted by other opponents (T 620/99, point 1 of the Reasons; T 790/03, point 2.1 of the Reasons). Consequently, the board allowed the respondent to rely on the submissions made by former joint opponents 1 to the extent that these did not give rise to an objection of late filing." 
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EPO 

The link to the decision is provided after the jump, as well as (an extract of) the text of the decision.

https://www.epo.org/law-practice/case-law-appeals/recent/t181820eu1.html

1. The appeal complies with Articles 106 to 108 and Rule 99 EPC and is admissible.

Procedural issues

2. In the present appeal proceedings, joint opponents 1 took an active part, whereas opponent 2 (respondent) did not file any requests or submissions in the written proceedings. The day before the scheduled oral proceedings, by letter dated 16 December 2021, joint opponents 1 withdrew their opposition and announced that they would not be attending the oral proceedings (see section XII.). At the oral proceedings, the respondent indicated that it intended to rely on the submissions of former joint opponents 1. The appellant objected to this, arguing that presenting requests and arguments and raising objections for the first time at the oral proceedings was too late and that none of these submission should be admitted.

3. According to Article 99(3) EPC, opponents are parties to the opposition proceedings as well as the proprietor of the patent. It is clear from this provision that several admissible oppositions do not initiate a corresponding number of parallel opposition proceedings, but only a single set (T 270/94, point 2.1 of the Reasons; T 656/94, point 7 of the Reasons; T 620/99, point 1 of the Reasons). All grounds of opposition raised by the various opponents, as well as the facts, evidence and arguments presented by them, form the legal and factual framework within which the substantive examination of the opposition is to be conducted. None of the parties involved in the opposition proceedings can be prevented from adopting facts, evidence and arguments presented in due time by another party (T 270/94, point 2.1 of the Reasons; T 620/99, point 1 of the Reasons; T 863/96, point 2 of the Reasons; see also T 154/95, point 2 of the Reasons: even documents originating from an opposition that has been declared inadmissible are allowed).

4. The same applies to opposition-appeal proceedings. All parties to the opposition proceedings are necessarily parties to any subsequent appeal proceedings (Article 107 EPC). It is therefore not possible to split the appeal proceedings into different procedures, each dealing separately with the grounds for opposition and the facts, evidence and arguments presented by the individual opponent concerned (T 790/03, point 2.1 of the Reasons). Therefore, each opponent can rely on any grounds, facts, evidence and arguments duly submitted by other opponents (T 620/99, point 1 of the Reasons; T 790/03, point 2.1 of the Reasons). Consequently, the board allowed the respondent to rely on the submissions made by former joint opponents 1 to the extent that these did not give rise to an objection of late filing.