3. Interruption of proceedings under Rule 142 EPC

In T 54/17 the board was called on to decide on an interruption of the proceedings. The appellant (patent proprietor) had appealed against the opposition division's revocation of the patent. That decision had come after a first set of appeal proceedings, at the end of which the board had remitted the case for further prosecution. The proprietors at that time were the joint applicants Mr S. (common representative) and Mr P. On the day before the scheduled oral proceedings, Mr P. requested that the proceedings be interrupted because insolvency proceedings initiated against Mr S. and his property in 2015 were still pending. The oral proceedings were cancelled as a result. By letter of 22 December 2017, the Legal Division interrupted the proceedings with effect from 30 January 2015 and, by letter of 5 March 2018, resumed them with effect from 2 May 2018. The board observed that the reason for the interruption in this case had come to an end on 25 March 2015. However, in proceedings under the EPC, an end to the reason for their interruption did not automatically result in their resumption; instead, under R. 142(2) EPC, the proceedings were resumed only as from a date specified by the EPO after being informed of who was now authorised to continue them. The EPO had only been informed of the authorisation to continue the proceedings in a letter from the insolvency practitioner of 30 January 2018; the Legal Division had then specified 2 May 2018 as the date on which the proceedings were to resume. That would mean that both the first set of appeal proceedings, which had been closed by decision of 2 October 2015, and the opposition proceedings ensuing after remittal had been devoid of purpose and had to be conducted again. The board took the view that, in cases where an appeal was pending, the Legal Division did not have exclusive competence to decide on an interruption. It thereby endorsed the view taken in T 854/12 that a board could decide on this for itself in any proceedings before it because, otherwise, a department outside the boards of appeal could deprive it of its power over those proceedings without its being able to do anything about it, especially if interrupting them retrospectively. The board also found that the proprietor could no longer invoke the interruption and that the proceedings therefore had to be continued without any restriction. The purpose of R. 142(1) EPC was to protect proprietors against adverse procedural developments during their temporary procedural incapacity (T 854/12). However, such protection had at best been needed from 30 January 2015 to 25 March 2015. If a patent proprietor, despite being aware of circumstances justifying an interruption which wereexclusively within their sphere of influence, continued to act in proceedings for years after those circumstances had come to an end without ever invoking them, it would be unfair for them then to invoke an interruption at such a late stage, with the result that the proceedings conducted up to then, in which they had actively taken part, had to be conducted again. That would be at odds with the principle of good faith (see also, on sufficiency of disclosure, Chapter II.C.1.1.).

In T 1389/18 the board came to the conclusion that the appealed interlocutory decision of the opposition division had to be retroactively deemed not to exist. The appeals before the board were therefore also devoid of purpose, such that the appeal proceedings had to be ended without a decision on the merits of the case. At the time of the Legal Division's communication declaring the proceedings interrupted, the opposition proceedings before the opposition division had not been formally concluded, but were still pending. Accordingly, the Legal Division was competent on the matter of an interruption under R. 142 EPC. The board held too that an interruption under R. 142(1)(b) EPC serves the protection not only of the interests of the patent proprietor but also those of its creditors. This rule protects these interests by preventing any measure with legal effect from being taken, be it by the proprietor or the EPO, that is liable to adversely affect the patent's value as an asset. Lastly the board had to decide whether it was required to take into account in the appeal proceedings an interruption under R. 142 EPC declared by the Legal Division during them. The board in T 854/12 had held that not to be the case. However the board in T 1389/18 doubted whether the reasons given in T 854/12 applied to the case in hand. In the circumstances it decided not to disregard the Legal Division's declaration of an interruption. Instead it reissued its earlier communication to avoid confronting the parties with an unclear procedural situation and disproportionately delaying the proceedings.