Key points
- This is an unuasal appeal about a request to exclude documents from the public part of the file.
- " By letter dated 18 December 2017, the patent proprietor indicated that it had been informed that opponent 2 intended to make written submissions in preparation for the oral proceedings." The patentee then requests that the letter of the opponent is excluded from the public file and that the letter is not sent to the other opponent.
- First oral proceedings before the OD then take place. The OD decides to admit the documents at issue in the proceedings. The OD then concludes that second oral proceedings are to be held.
- " The present appeal was filed by the patent proprietor following a communication annexed to the summons [issued 31.08.2018] to second oral proceedings in opposition proceedings."
- The question is whether this appeal is admissible, in particular, whether there is a decision.
- The Board: " although an implicit decision is not acknowledged as such in the Convention, its possible existence cannot be excluded either because there are circumstances where a decision can be inferred from the context rather than based on the form of a document"
- " The appellant argued [] that the contested documents were not only listed in this communication but were also commented upon. Therefore, their content was - at least indirectly - made available to any third party reading the communication."
- " Although the board acknowledges the logic supporting this argument, it can nonetheless not draw the same conclusion as the appellant."
- " There is no mention at all of the request for their exclusion from file inspection, let alone a decision rejecting such a request. Indeed, the communication appears to only contain the opposition division's provisional opinion on the therein identified outstanding issues and does not seem to even hint at a decision on any issue. Moreover, the contested documents are still in the non-public part of the file."
- " Thus, the present appeal was filed in the absence of a decision and therefore has to be rejected as inadmissible"
- " The fact that the documents were communicated to the other opponents is not in contradiction with their provisional exclusion from public inspection."
- The other opponent is party to the appeal proceedings. " Regarding the appeal, as foreseen in Article 107, second sentence, EPC "any other parties to the proceedings shall be parties to the appeal proceedings as of right". The provision contains no exception and allows no different interpretation, nor could the appellant's arguments shed a different light or lead to a different understanding. Thus, the opponents are parties to the present proceedings."
T 2893/18 -
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Reasons for the Decision
Party status of opponents 1 and 3
1. The appellant argued, in its submissions of 3 July 2019, that the issues to be considered in the present appeal warrant the participation of only opponent 2 in the proceedings and the exclusion of the other two opponents. The appellant reasoned that opponents 1 and 3 should not have party status since the appeal was not concerned with the opposition itself but with the incidental issue of the exclusion from file inspection of documents submitted by opponent 2 and the correct procedure to be applied when deciding it. They should even have been excluded from participation in the discussion of this issue during the opposition proceedings to safeguard that the contested documents remained unavailable to the public.
2. As the opposition division correctly pointed out in its communication dated 22 December 2017, all documents submitted in the course of opposition proceedings and all exchanges between one party and the opposition division have to be communicated to all parties due to the inter partes nature of opposition proceedings (see also 5.2 below).
Regarding the appeal, as foreseen in Article 107, second sentence, EPC "any other parties to the proceedings shall be parties to the appeal proceedings as of right". The provision contains no exception and allows no different interpretation, nor could the appellant's arguments shed a different light or lead to a different understanding. Thus, the opponents are parties to the present proceedings.
Admissibility of the appeal
3. The appellant's case rests on the argument that the opposition division's communication dated 31 August 2018 contains the implicit decision to reject its request for the exclusion of documents D18-D37 from public file inspection.
