Appeal proceedings at the EPO can take up to 2 years or more, i.e. a period often too long for the parties to benefit from the result of such proceedings also at the national level. Thus, the parties often also institute national proceedings, particularly where national proceedings are handled more quickly than European proceedings, thus generating additional costs for the parties as well as possibly conflicting decisions regarding the same European patent.

Within this context, an EPO Technical Board of Appeal (TBA) decision dated October 21, 2009 (T 18/09, unpublished so far) raises great interest.

In this case the opponent had started both an opposition against a certain European patent and a revocation action relating to the British portion of the same patent. Both proceedings had led to a revocation decision. Shortly after the start of the European appeal proceedings, the TBA had received a request by the English Court of Appeal asking the TBA to accelerate the appeal proceedings to allow the English Court to rely on the TBA decision. While ensuring that the parties’ right to be heard would not be violated, the TBA indeed accelerated the appeal proceedings to meet the English Court’s request, reasoning that if the TBA’s eventual (accelerated) decision were the rejection of the appeal and confirmation of the revocation of the patent, then the national proceedings would become redundant, thus resulting in significant time savings by the national Court and significant costs savings by one of the parties to the national proceedings.

Now, in T 18/09 the TBA did not ultimately confirm the revocation of the patent. Nevertheless, where both EPO appeal proceedings and national proceedings are ongoing, it may be worth filing an acceleration request of the EPO appeal proceedings based on the above principle of time and costs savings, where such acceleration may be requested by the parties or by the Court where the national proceedings are pending. Indeed, there may be cases where a party wishes to have the national Court wait for the outcome of EPO appeal proceedings; in such cases, that party could ask for an acceleration of such appeal proceedings, or even signal to the national Court that it, too, could ask for acceleration of the appeal proceedings, thereby rendering the near-stay of the national proceedings official. This option could be interesting for as long as, in Europe, there continues to be a national litigation system rather than a unified patents court.

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