1.5. Accelerated processing before the boards of appeal

New rules on accelerating appeal proceedings have been introduced in Art. 10(3) to (6) RPBA 2020. Paragraphs 3 to 6 replace the notice from the Vice-President Directorate-General 3 dated 17 March 2008 concerning accelerated processing before the boards of appeal (OJ 2008, 220).

The possibility of accelerating proceedings allows the boards to give an appeal priority over other pending appeals. Parties with a legitimate interest may ask the boards of appeal to deal with their appeals rapidly. Under Art. 10(3) RPBA 2020, the boards have discretion in deciding on a party's request for acceleration (for details on this, see Supplementary publication 2, OJ 2020).

The appellant (patentee) in T 734/12 requested acceleration of the appeal proceedings on the basis of three arguments: the possibility of remittal; the suggestion that the decision under appeal related to an important point of law the resolution of which might take additional time; and the commercial and medical importance of the patented and approved treatment. In the board's opinion these reasons did not in themselves justify acceleration. Whilst acceleration had been acknowledged as appropriate when infringement proceedings were threatened or pending, which was not the case here. However, it was clear there was a substantial measure of agreement between the parties and the public had an interest in the early resolution of disputes. The interests of the parties and of the public would therefore best be served by an expedited procedure.

In T 895/13 of 28 March 2014 date: 2014-03-28 the board confirmed that acceleration is always a matter for the exercise of the board's discretion. While trivial reasons would clearly not warrant acceleration, there was no fixed standard of proof. It was clear in the case at issue that the board could have accelerated the procedure ex officio under the notice of 17 March 2008 concerning accelerated processing before the boards of appeal (OJ 2008, 220), in view of the disadvantage which could ensue before the Belgian courts from the suspensive effect of the appeal in question. If the board could allow acceleration on that basis of its own motion, it could clearly do so on the request of a party. The board ordered the appeal proceedings to be accelerated. It added that its views related only to the particular facts of this case and the co-pending appeal in T 1125/13 of 28 March 2014 date: 2014-03-28 between the same parties and were not intended to set any precedent for application beyond those facts.

In T 239/16 the board allowed acceleration. The board stated that according to the notice of 17 March 2008 concerning accelerated processing before the boards of appeal (OJ 2008, 220) trivial reasons would clearly not justify acceleration. It followed from the scenarios in the notice that the term "legitimate interest" was not to be construed as requiring compelling reasons. Rather, objective reasons had to be put forth that warranted giving the appeal priority. Of course, the reasons invoked must be weighed against any disadvantage which might possibly ensue from granting accelerated proceedings. In the case in hand, in support of their requests for accelerated processing, the appellants (opponents) argued that infringement proceedings had been brought against their affiliates in France. The board was satisfied that the appeal proceedings at issue had a bearing on the infringement proceedings in France even if the appellants were not party to the infringement proceedings in France. See also T 1868/16 where the board allowed acceleration on the grounds that arbitration proceedings had been brought against an affiliate company in Portugal.

In T 872/13 the board did not accede to the request for accelerated processing of the appeal because the reason provided by the appellant (opponent) that the patent was "causing uncertainty and hampering investment and development decisions by interested parties" was a general statement and not specifically related to a party to the proceedings.

In T 1213/17 the proprietor requested that the case be remitted to the Opposition Division if the new objection was admitted into the proceedings. The board noted that the impugned decision dealt with all the grounds for opposition raised by the opponent. Moreover, national proceedings on issues of infringement and revocation were pending before the Stockholm District Court/Patent and Market Court in Sweden, on the basis of which the opponent requested accelerated processing before the board. The board decided not to remit the case.

See also chapter IV.C.7. "Acceleration of opposition proceedings in the case of pending infringement proceedings".