"In September 2025, the Enlarged Board of Appeal (EBA) issued its decision in G 2/24. The EBA addressed a procedural question: if a third party (an "intervener") joins an ongoing appeal, can that party keep the case alive if all the original appellants withdraw? The EBA's answer was a no. Interveners play only a supporting role in appeal proceedings and cannot take over once the main participants have left the stage."
"Because the opposition window had closed, Geske could no longer file its own opposition. Instead, it attempted to join the existing opposition proceedings through intervention under Article 105 EPC, which allows an alleged infringer to participate if it has been sued for infringement or has brought a declaratory action for non-infringement. However, the EPO Opposition Division rejected Geske's intervention, deciding that a mere warning letter was insufficient."
The Enlarged Board of Appeal held that an intervener cannot sustain an appeal once all original appellants withdraw. The decision arose from opposition and appeal proceedings concerning European Patent No. 2941163 owned by Foreo Limited. Beurer GmbH filed opposition within the nine-month period. After that period, Foreo sent a warning letter to Geske GmbH & Co. KG, which sought to intervene under Article 105 EPC. The EPO Opposition Division found the warning letter insufficient and required actual infringement proceedings or a filed declaratory-judgment action to permit intervention. Interveners may join appeals but only in a supporting capacity.
Read at IPWatchdog.com | Patents & Intellectual Property Law
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