The European Patent Office's (EPO) Enlarged Board of Appeal has issued its ruling in case G 2/24. The decision, handed down today (25/09/2025), confirms its earlier stance in G 3/04, clarifying that once all appeals have been withdrawn, the proceedings cannot be continued by a third party who intervened only during the appeal stage.
Key Details of the Case
The case originated from a referral by Technical Board of Appeal 3.2.04 in the matter of T 1286/23. This referral sought clarification on whether appeal proceedings could continue with a third-party intervener after all appeals had been withdrawn, and if that third party could acquire the same status as an appellant.
The underlying scenario involved an appeal filed by an opponent to a patent. A third party later intervened in the proceedings while the appeal was underway. When the original opponent-appellant withdrew their appeal, the question arose as to whether the newly-joined third party could continue the proceedings. The referring Board asked the Enlarged Board to reconsider its previous finding in G 3/04, which concluded that such continuation was not possible.
The Board's Findings
The Enlarged Board of Appeal determined that the core principles from its G 3/04 decision remain valid. It noted that while there have been some changes to the legal framework since that time, none of the key provisions relevant to the case, namely Articles 99(1), 105, and 107 of the European Patent Convention (EPC) have been substantively altered.
The Board also emphasised that appeal proceedings are a judicial process designed to address the "adverse effect" of a decision on a party who participated in the initial administrative proceedings at the EPO. The scope of an appeal is primarily set by the appellant's request and is not an "ex officio" procedure, it relies on the party to initiate, define, and conclude it.
In its decision, the Enlarged Board stated that an intervener, who was not a party to the original administrative proceedings, enters the appeal proceedings as they are at that time. Such parties do not have a legal standing that is independent of the ongoing appeal. This means that if the sole or all appeals are withdrawn, the proceedings conclude, and an intervener cannot continue them on their own.
The Ruling
The final order from the Enlarged Board of Appeal is clear:
- Appeal proceedings cannot be continued by a third party who intervened during the appeal stage after all original appeals have been withdrawn.
- An intervening third party does not gain the same appellant status as a person originally entitled to appeal.
Further information