The duration of appeal proceedings before the European Patent Office (EPO) is an essential factor in the management of IP rights by their owners as well as in the strategic planning of third parties. This applies both to appeals from decisions of the EPO Examining Division refusing a European application and to appeals from decisions of the EPO Opposition Division relating to an opposition filed against a granted European patent.

The EPO Boards of Appeal have now issued important information regarding the timing and acceleration of appeal proceedings.

Regarding acceleration, the Boards of Appeal presidium has established by way of an official Notice published in January 2016 that any party which can show a legitimate interest may ask the Boards of Appeal to deal with a given appeal proceeding rapidly. In such case, the Boards of Appeal will be able to speed up a given appeal proceeding as far as is allowed by the relevant procedural regulations.

A request for accelerated processing of a given appeal proceeding pending before the EPO must be submitted to the appropriate Board of Appeal. It can be submitted either at the beginning of or during the proceedings. The request should contain the reasons for urgency together with any relevant documents in support of such request. The Notice has clarified that this option is also available to the courts and appropriate authorities of the EPC contracting states.

The Notice provides examples of circumstances which could justify an appeal being dealt with particularly rapidly:
– Cases where infringement proceedings have been brought or are envisaged. Although the Notice does not specify this, the existing or envisaged infringement proceedings must be based on the European patent application or patent forming the subject matter of the pending appeal proceedings, and not on a foreign equivalent thereof or some other European patent right;
– Cases where the decision of potential licensees of the European patent forming the subject matter of the appeal hinges upon the outcome of the appeal proceedings pending before the EPO;
– Cases where the appeal relates to a decision taken by the EPO Opposition Division, and the opposition proceeding itself was already subject to accelerated processing.

The Notice further indicates that, by way of exception, the Boards of Appeal may accelerate a given appeal proceeding ex officio. A factor in such ex officio acceleration may be, by way of example, the disadvantages which could ensue from the suspensive effect of the appeal in the case in question.

Of course, the Boards of Appeal have full discretion in deciding whether to accelerate an appeal proceeding, even in the case where an actual request for acceleration is filed by an interested party. In particular, the determination of the urgency of a particular case will depend on the nature of the case, and not solely on whether accelerated processing has been requested by the parties.

In those cases where, after having considered the circumstances, the reasons provided in the request for acceleration and the contents of the supporting documents, a Board of Appeal decides to grant accelerated processing, the Notice indicates that this will entail giving the appeal priority and/or – without prejudice to fair administration of justice and to the parties’ right to be heard – adopting a strict framework for the procedure, e.g., with respect to the time limits which are procedurally available before the Board of Appeal’s final decision is rendered.

The Notice therefore identifies a number of circumstances in which a request for acceleration of appeal proceedings pending before the EPO Boards of Appeal may be acceptable, thereby providing a possible instrument for meeting a given party’s need for urgency for a particular case.

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