7. Acceleration of opposition proceedings in the case of pending infringement proceedings

In cases where an infringement action in respect of a European patent is pending before a national court of a contracting state, a party to the opposition proceedings may request accelerated processing. The request may be filed at any time. It must be filed in written reasoned form. In addition, the EPO will also accelerate the processing of the opposition if it is informed by the national court or competent authority of a contracting state that infringement actions are pending (Notice of the EPO dated 17 March 2008, OJ EPO 2008, 221; Guidelines E‑VIII, 5 – November 2018 version).

The case underlying T 290/90 (OJ 1992, 368) involved seven oppositions. One of these was deemed not filed, and the opponent appealed against the decision issued in respect of it under R. 69(2) EPC 1973 (R. 112(2) EPC). The patent proprietor requested accelerated processing of the appeal because an infringement action was pending and, in view of the probable number of infringing products on the market, the longer the opposition proceedings took, the more difficult it would be to enforce the patent if maintained. According to the board, a "raison d'être" for obtaining and maintaining a patent was to enforce it where appropriate. The timing of enforcement proceedings could be of real importance and delays could be prejudicial to the proprietor's interests and those of his competitors. In the case of infringement proceedings the speedy processing of opposition proceedings in respect of the relevant European patent became especially important. It was therefore important to decide quickly not only on the appeal but also on the complete substantive opposition. In the case of multiple oppositions, as here, the board considered, in view of the suspensive effect of the appeal, that the opponent (appellant) should be treated as having duly filed an opposition unless and until the board decided otherwise. With an appeal concerning the existence or admissibility of one of the oppositions, the examination stage of the opposition proceedings should be prepared and processed in parallel, with the participation of all the opponents, up to the point when it was ready to be decided: as soon as the appeal was decided, the opposition could also be decided (see Headnote II.).

See also chapter V.A.1.5. "Accelerated processing before the boards of appeal".