Dr Juliette Boynton

October 2025

As a reminder, following grant of a patent to Foreo AB an opposition was filed by Beurer GmbH, and during the pendency of the opposition, Foreo sent a letter to Geske GmbH & Co. KG accusing them of infringment and threatening action.  Geske filed an intervention based on this letter, which was rejected as no proceedings had been initiated.

Geske then filed a suit before the Dusseldorf District Court requesting a judgement of non-infringement and filed a second request for an intervention on the basis of this suit.  However, they did so before the action had been communicated to Foreo, and thus this second request for an intervention was also rejected, as again no proceedings has been initiated.  By the time the Foreo had been notified of the action, the Decision on the opposition had been issued.  As Beurer had filed an Appeal, Geske were able to file a third intervention request, which was accepted.

Unfortunately for Geske, following the issuance of the Summons Beurer withdrew its appeal.  The Appeal Board therefore had to consider whether to continue with the proceedings, particularly in view of G3/04, which indicated that an appeal may not continue with an intervener only.

It appears that the Appeal Board had sympathy with Geske, considering that they had tried to take appropriate action but that issues and timing beyond their control threatened their ability to use the intervention process.

Firstly, the Appeal Board considered that the intervention and appeal related to the Decision of the Opposition Division to maintain the patent but also to the Decision of the Opposition Division regarding the second intervention.  As the appeal was filed after the two-month decision following rejection of the second intervention, the Board considered it inadmissible in this regard.

Regarding the admissibility of the appeal as such, the Board indicated that its status was dependent on the admissibility of the third intervention and whether an intervener entering at the appeal stage may or may not acquire the status of an appellant.

The Board reviewed the Decision of G3/04 and noted that there the Enlarged Board considered that an intervener during an appeal acquires the status of a non-appealing opponent.  The Appeal Board suggested that this was very hard on an intervener who was not able to file an intervention at an earlier stage.  The Appeal Board also opined that the Enlarged Board’s Decision does not explain why an intervener at the appeal stage cannot obtain the status of an appellant, which would suggest that the status of the intervener would be dependent on the relationship between its request and the Decision appealed, and also on the action of the other opponents/appellants, which it considered not entirely reasonable.

Thus, the Appeal Board referred the following question to the Enlarged Board:-

After withdrawal of all appeals, may the proceedings be continued with a third party who intervened during the appeal proceedings? In particular, may the third party acquire an appellant status corresponding to the status of a person entitled to appeal within the meaning of Article 107, first sentence, EPC?

The Enlarged Board has now answered this question as follows:-

After withdrawal of all appeals, appeal proceedings may not be continued with a third party who intervened during the appeal proceedings in accordance with Article 105 EPC.

The intervening third party does not acquire an appellant status corresponding to the status of a person entitled to appeal within the meaning of Article 107, first sentence, EPC.

In its reasoning, the Enlarged Board considered that Decision G3/04 continue to apply.  It appears that the most critical factor in the Enlarged Board’s Decision was the purpose of an appeal being to provide the parties to the proceedings before the administrative departments with legal protection against possible infringements of their rights under the EPO in a particular case.  The Enlarged Board noted that the primary object of the appeal is a review of the decision under appeal in a judicial manner with regard to their procedural and substantive correctness, and as such an appeal is a separate and independent process and not a mere continuation of the original proceedings.

An appeal may be filed by a party adversely affected by the original decision only, and thus are parties who are named in the decision.  Such parties are able to file an appeal but also withdraw the appeal should they so wish.  If an intervener filed its intervention during the original proceedings, it will be named in the decision and entitled to appeal.  However, a party that has not been admitted as a party to the proceedings at first instance has no right to appeal.

While the Appeal Board had sympathy with Geske, the Enlarged Board did not and noted that Geske could have filed an opposition during the opposition period but did not and thus was not a party to the opposition proceedings.  There is no bar for parties filing an opposition, other than the time limit.  While Geske did try to file an intervention during the opposition proceedings, this is an exceptional procedure with very limited criteria, which Geske failed to reach until the appeal stage.  By entering into the proceedings at a late stage, their options were limited.

As a result, the Enlarged Board concluded that an intervener at the appeal state cannot benefit from any status conferred on parties of the first instance proceedings.

Ultimately, the Enlarged Board also noted that there had been no relevant changes to the legal framework since G3/04, and no decision that contradicted G3/04, and in view of the nature and purpose of an appeal, the Decision in G3/04 was correct.

Thus, a party who intervenes during an appeal does not acquire the status of an appellant, but that of a non-appealing party only, and as a result, after the withdrawal of the sole or all appellants, the appeal proceeding cannot be continued with an intervener alone.