Can a third party or intervener continue an appeal if the original appellant withdraws? This question was raised in case T 1286/23. Though the final decision of this case is still pending, this article aims to provide a view on the judgement’s implications.
The patent under appeal for T 1286/23 relates to a handheld skin cleanser, European patent 2941163, originally granted to Foreo AB. However, this patent was later opposed by a third party, Beurer GmbH, who challenged the patent’s validity. Beurer asserted that the patent was invalid on the grounds that it did not meet the requirements of patentability such as added matter, novelty and inventive step.
Background
Beurer’s opposition against Foreo was rejected by the European Patent Office (EPO). Beurer subsequently filed an appeal at the EPO’s Board of Appeal (BOA), in order to continue challenging the patent’s validity. It was during this appeal phase that a third party, namely Geske GmbH, another one of Foreos competitors, decided to intervene in the case proceedings, under Art. 105 EPC. In accordance with Art. 105 EPC, interveners can join an opposition or appeal if they face infringement risks from the patent in question. Previously, Foreo had accused Geske of infringing on the same patent, which ultimately gave Geske direct interest in the outcome of the dispute.
Beurer, the original appellant, later made the decision to withdraw their appeal. This action left Geske as the only party still challenging the patent. However, a previous decision, namely G 0003/04, established that if the original appellant withdraws from an appeal, a third party or intervener would not be entitled to continue the appeal independently. This raises the question of whether Geske could continue to appeal the case independently or if the proceedings had to be terminated based on the previous decision.
It was the Board’s opinion that irrespective of the previous decision, G 0003/04, preventing Geske from independently proceeding with the appeal would greatly inhibit their access to fair judgment while also creating a procedural imbalance. Therefore, the Board referred two main legal questions from this case to the Enlarged Board of Appeal (EBOA), which is now the pending case G 0002/24. The two main legal questions referred to are as follows:
- Can an intervener continue an appeal after the appellant withdraws?
- Can an intervener gain full access to appellant rights, equivalent to the original challenger?
The EBOA has yet to issue a final decision in relation to these questions.
Discussion
If the EBOA rules in favor of Geske, it could mark a pivotal moment in European patent law by expanding the rights of third parties (who are not part of the original appellant) to defend themselves in patent disputes. This would prevent patentees from leveraging procedural loopholes to maintain potentially invalid patents, ensuring a more balanced and fair system. Such a ruling would also strengthen the ability of companies accused of infringement to challenge patents effectively, reducing the risk of monopolies based on patents that may lack validity.
On the flipside, if the EBOA decides to uphold the current rule under G 0003/04, it could restrict third parties like Geske from independently continuing appeals. This could lead to higher procedural barriers, leaving companies unable to defend themselves fully and allowing questionable patents to remain enforceable purely on legal technicalities.
The decision in this case will ultimately determine whether the European patent system prioritises accessibility and fairness or continues to impose strict limitations on the role of interveners.