Enlarged Board of Appeal decides case G2/19 on the rights of third parties and the venue of oral proceedings in Haar

Today, oral proceedings took place before the Enlarged Board of Appeal in case G 2/19. In this case, the Technical Board 3.5.03 in its decision of 25 February 2019 had referred the following questions (translated to English from German as the language of proceedings):

1. In appeal proceedings, is the right to oral proceedings under Article 116 EPC restricted where the appeal is prima facie inadmissible?

2. If the answer to question 1 is yes, is an appeal against the decision to grant in this sense prima facie inadmissible, where the third party within the meaning of Article 115 EPC filed the appeal and justified it by arguing that within the framework of the EPC no alternative legal remedy is available against a decision of the examining division not to consider its objections regarding the purported non-compliance with Article 84 EPC?

3. If the answer to one of the first two questions is no, can the board hold oral proceedings in Haar without infringing Article 116 EPC if the appellant has complained that the location was not EPC-compliant and requested a transfer to Munich?

Representatives of the epi attended the oral proceedings with great interest. The epi had previously filed an amicus curiae brief, which was referred to on several occasions during the oral proceedings.

After an exchange of arguments with excellent submissions from epi members representing the patent owner and the third party, the Enlarged Board of Appeal decided the following.

With regard to admissibility:

• that the referral is inadmissible to the extent it pertains to question 1.

• that the referral is admissible with respect to questions 2 and 3 while these questions will be editorially redrafted.

With regard to the referred questions:

• A third party within the meaning of Art 115 EPC who has filed an appeal against the decision to grant the patent does not have a right to oral proceedings with regard to the objection of clarity under Art 84 EPC. The filing of such an appeal does not have suspensive effect.

• Oral proceedings in Haar do not violate Art 113(1) and 116(1) EPC.

The decision will be published.

The minutes and the decision will follow soon.