Parties with a legitimate interest may ask the boards of appeal to deal with their appeals rapidly (see Notice from the Vice-President Directorate-General 3 dated 17 March 2008 concerning accelerated processing before the boards of appeal (OJ 2008, 220) and Article 10 (3) Rules of Procedure of the Boards of Appeal (RPBA 2020).
However, as many of us know, most of these requests for acceleration of appeal proceedings are not be accepted.
Acceleration is generally a matter for the exercise of the board’s discretion at the board’s discretion. While trivial reasons do not warrant acceleration, there is no fixed standard of proof (T 895/13). To quote other positive examples, acceleration has been acknowledged as appropriate, for example, when infringement proceedings were threatened or if the public had an interest in the early resolution of disputes (T 239/16, T 734/12).
One more successful example can now be added to the list: Dr Matthias Stolmár, even though only acting as straw man, recently succeeded in requesting acceleration of the appeal proceedings in T1732/18.
The reasons relied upon in the request can be summarized as below:
15(1) of the Rules of procedure before the Boards of Appeal 2020
The case is more than ready for issuance of the Summons to attend Oral Proceedings. Additionally, given the number of 13 Opponents, only Oral Proceedings could conclude the case in a timely manner without further unnecessary delay.
Replies to the Grounds of Appeal Opponents/Appellees as well as Patentee’s reply to the responses of the Opponents were already filed in February 2020.
Thus, according to Article 15(1) in combination with Article 1(2) of the RPBA 2020 the Board of Appeal could have issued the Summons to attend Oral Proceedings at the beginning of 2020.
No existing comparable case law
Further, the current case could be a fundamental and landmark decision since it is not comparable to current dosage regiment case law.
The opposed patent was revoked on the basis of not involving an inventive step according to Art. 56 EPC.
Length of proceedings
The Appeal proceedings should conclude as soon as possible, since the have been going on for a very long time.
The patent was granted after almost 8 years and the Opposition proceedings lasted 21 months longer than the published early certainty objective.
Term of the opposed patent
Patentees as well as the Opponents have a legitimate interest to obtain a decision in the Appeal proceedings well before the patent expires.
The patent has already entered the 16th year and will expire within five years.
Common interest of legal and market certainty
There is no certainty about validity of the patent.
Currently, competitors are banned to enter any market in Europe where the patent is in force despite it having been revoked in the first instance.
Consequently, it is apparent that a decision is needed as soon as possible.
Stolmár & Partner is pleased to announce that the Board of Appeal followed our arguments and decided to grant the request for acceleration.