1.3.1 Definition of the suspensive effect of the appeal

Under Art. 106(1), second sentence, EPC, an appeal has suspensive effect.

In G 2/19 (OJ 2020, A87) the Enlarged Board of Appeal observed that this provision has basic character. It is tailored to the standard case of an appeal filed by a party to the preceding proceedings who was adversely affected by a decision issued in them and who is seeking redress for a grievance which is appealable as such. There is, however, no legitimate interest in also lending suspensive effect to a means of redress which has no basis in the EPC and which is therefore clearly inadmissible, such as an appeal filed by a third party within the meaning of Art. 115 EPC to remove allegedly unclear claims (Art. 84 EPC). The Enlarged Board of Appeal held that it logically follows that the initiation of a means of redress which, owing to such circumstances, is clearly inadmissible can have no suspensive effect.

The Legal Board of Appeal defined this effect in J 28/94 date: 1994-12-07 (OJ 1995, 742), in which a third party claimed entitlement to the grant of the patent and requested suspension of the proceedings for grant under R. 13(1) EPC 1973 (R. 14 EPC). The board took the view that the appeal's suspensive effect meant the contested decision had no legal effect until the appeal was resolved. Otherwise the appeal would be nugatory. Thus, if a decision refusing to suspend the publication of the mention of grant of a patent were appealed, publication should be deferred until the appeal was decided. If (as here) this was not possible for technical reasons, the EPO should take all necessary steps to advise the public that the mention of grant was no longer valid (see also T 1/92, OJ 1993, 685).

According to J 28/03 (OJ 2005, 597), suspensive effect means that the consequences following from an appealed decision (here: grant of a patent on the parent application) do not immediately occur after the decision has been taken. Actions normally taking place after a decision are "frozen". Suspensive effect does not have the meaning of cancellation of the appealed decision. Even after an appeal the decision as such remains and can only be set aside or confirmed by the board of appeal.

In J 12/16 the examining division had had the mention of the grant of the patent published while the period for appealing against the Legal Division's rejection of a request for the application's transfer was still running. The board held that doing so could cause serious problems because publishing the mention of the grant triggered the start of the period for opposing the patent; that, in turn, could make the appeal redundant while the appeal proceedings were still pending, even though the appeal itself had suspensive effect. Since, as long as the appeal period had not expired, in theory the filing of an appeal, and so the suspensive effect under Art. 106(1) EPC, had to be expected at any moment (see also J 28/94 date: 1994-12-07), publishing the mention of the grant should be avoided in such circumstances so as not to deprive the appeal of its suspensive effect in practice.

In T 591/05, the suspensive effect of an appeal was said to be a direct consequence of, and was subordinate to the appeal itself and, consequently, no circumstance directly arising from the suspensive effect of the appeal could be invoked in support of the admissibility of the appeal itself.

J 18/08 and T 1674/12 likewise concerned the meaning of suspensive effect.