Infringers as interveners in EPO proceedings

"EPC Article 105(1) practice curtails interveners' rights" is an article which is now available online to subscribers to the Journal of Intellectual Property Law & Practice (JIPLP). The author, Dr Joseph Straus, is a multi-chaired academic and Emeritus Director at the Max Planck Institute for Intellectual Property and Competition Law, Munich. Article 105 states as follows:

"(1) Any third party may, in accordance with the Implementing Regulations, intervene in opposition proceedings after the opposition period has expired, if the third party proves that

(a) proceedings for infringement of the same patent have been instituted against him, or

(b) following a request of the proprietor of the patent to cease alleged infringement, the third party has instituted proceedings for a ruling that he is not infringing the patent.

(2) An admissible intervention shall be treated as an opposition".

According to the abstract:

"Under the rules of the European Patent Convention third parties may intervene in pending opposition proceedings.

In this article the author examines the requirements of intervention as applied by the case law of the European Patent Office in the light of the rationale and purpose of the adopted legal instrument.

The author makes several suggestions for a more balanced treatment of the rights of interveners".

This is not a subject on which there appears to be a large literature. PatLit would therefore like to hear of any experiences, good or bad, which readers may have had with regard to Article 105(1).