No appeals without a party: EPO decides interveners cannot continue appeals alone
On 25 September 2025, the EPO’s Enlarged Board of Appeal (‘EBoA’) issued its decision in case G 2/24, the third in a list of recent EBoA decisions (see: G 1/24, and G 1/23). It addresses the procedural status of a third party that joins as an intervener at the Appeal stage. The decision is unlikely to translate to a change in practice, as it introduces no substantive change in law.
Background
G 2/24 arises from a referral in case T 1286/23 concerning European Patent EP2941163B1 (the ‘Patent’), which protects a pulsating skin cleanser device. The Patent, now owned by Foreo Limited (‘Foreo’), was opposed at the EPO by Beurer GmbH (‘Beurer’).
Two years later, Geske GmbH & Co KG (‘Geske’) received a letter threatening infringement proceedings by Foreo over the Patent. By then, it was too late for Geske to validly attack the Patent with a Notice of Opposition, so Geske tried to intervene in the ongoing Opposition between Foreo and Beurer instead, pursuant to Article 105(1) EPC.
The Opposition Division however refused to admit Geske’s two attempted interventions, because a mere threat without an infringement court case is not sufficient cause. By the time a civil action between Geske and Foreo was officially instituted, owing partly to shortcomings of the German court system, the ongoing Opposition between Foreo and Beurer at the EPO had already concluded: the Patent had been maintained in amended form.
Beurer appealed the EPO’s decision, seeking to completely revoke the Patent, and Geske finally had the chance to be admitted to proceedings as intervener. Beurer then withdrew their Appeal, and the Board needed to decide whether the Appeal could go ahead with Geske as ‘intervener/appellant’.
The following question was therefore referred to the EBoA:
After withdrawal of all appeals, may the proceedings be continued with a third party who intervened during the appeal proceedings? In particular, may the third party acquire an appellant status corresponding to the status of a person entitled to appeal within the meaning of Article 107, first sentence, EPC?
The decision
The situation closely mirrors that in Decision G 3/04, where the EBoA stated in no uncertain terms that, after withdrawal of the sole appeal, the proceedings may not be continued with a third party who intervened during the appeal proceedings.
Nevertheless, the need for this referral arose because, perhaps feeling sympathetic to Geske’s position, the Board of Appeal was inclined to allow Geske to ‘catch up’ and continue the Appeal, thus departing from G 3/04 and G 1/94. It had reasoned that, although Geske had not been a party to the first instance proceedings in the sense of Art. 107 EPC, their intervention was motivated by legitimate private interest, given the national infringement proceedings they were involved in. It seemed ‘unconvincing’ to the Board that the requirements of Art. 107 EPC (that only a party to proceeding may appeal) should prevail over the provisions of Art. 105(2) EPC (that interventions be treated as valid oppositions).
This interlocutory reasoning did not convince the EBoA. The Decision starts by noting that the relevant legal provisions (Art. 105, 107 EPC) had not substantially changed since G 3/04 was issued, and so there was no reason to deviate from it. The answer to the referred question must therefore be in the negative. The EBoA then went to some length to reassess the reasoning of G 3/04 and to confirm it from first principles.
The EBoA focussed on the function of the EPO’s Boards of Appeal as the judicial instance in proceedings under the EPC. The right to initiate, and to dispose of, proceedings at this stage lies squarely with the parties. While Boards may decide to continue proceedings ex officio, this is only appropriate before first instance administrative departments as a matter of principle, while “at the judicial appeal stage before the boards of appeal the principle of party disposition takes precedence because the public interest is primarily and sufficiently safeguarded by [the availability of the 9-month Opposition period to third parties.]” (Decision, 60–61).
The intervener cannot enjoy a better or different status to a non-appealing party. The only exception to this rule is that an intervener is allowed to raise their own grounds of opposition per Art. 100 EPC, having logically had no opportunity to do so before the intervention (Decision, 63).
The positions taken by previous Boards of Appeal (T 1108/02, T 439/17) and by various courts and legal systems (including UK courts and the UPC) in analogous situations were also reviewed, in a commendable effort to strive for procedural harmonisation with relevant jurisdictions.
In closing, it is interesting to note that while the EBoA remained steadfast in its position and, in a rare occurrence, decided on the issue without holding Oral Proceedings, most of the amicus curiae briefs it received (including that of the President of the EPO himself) had, at least in part, argued for the opposite outcome. It would seem that even ‘friends’ can sometimes disagree as to what constitutes a proper party!
Decision summary & advice
- An intervention filed at Appeal is merely an accessory to the Appeal proceedings. If all Appeals are withdrawn, proceedings cannot be continued with the intervener alone.
- Being a defendant in multi-jurisdictional infringement proceedings is likely to be costly and time-consuming, so clients should consider pre-emptying competitors’ national or UPC infringement actions by launching timely Oppositions at the EPO.
- Relying on the possibility of intervening in existing Oppositions may be risky as, depending on the stage, an intervener may not enjoy full opponent status.
If you would like advice on Oppositions or Appeals at the EPO, please contact one of the authors, Jennifer Atkinson, Jonathan Myers or Werther Vecchiato.
