Interruption of proceedings

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The interruption of proceedings is provided for by R142 EPC.

Chapter 1. Conditions

Section 1.1. skills

The interruption of proceedings falls within the competence of the Legal Division (R11 (2) EPC together "Decision of the President of the European Patent Office dated 12 July 2007 concerning the jurisdiction of the Legal DivisionOG 2007, Special Edition No. 3, G.1).

Section 1.2. Interruption case

The procedure is interrupted in three cases exhaustively listed (R142 (1) EPC):

  • death or disability the applicant, the holder or the person representing him / her under a national law (eg tutor, curator, etc.) (R142 (1) (a) EPC):
    • if that person has an agent, it is necessary that the latter request the interruption of the proceedings;
    • the inability of the applicant or holder is determined by national law (J900 / 85);
  • legal impossibility to continue the proceedings because of an action brought against the property of the applicant or holder (R142 (1) (b) EPC);
    • ex. judicial liquidation
  • death or disability the representative or legal impossibility the representative to continue the proceedings because of an action brought against his property (R142 (1) (c) EPC).
    • the incapacity of the representative is determined according to the rules of the EPO (J900 / 85point 10 of the reasons);
    • the question is whether the agent is able to manage his client's business and not his own business (J900 / 85point 10 of the reasons).

Section 1.3. Types of interrupted procedures

This procedure is not necessarily the issuing procedure, but any procedure before the EPO (opposition, appeal, limitation, etc.).

However, the death or incapacity of the opponent or the applicant (non-proprietor or applicant) does not seem to allow the suspension of the proceedings (only the terms "applicant" "proprietor" being used in the R142 (1) EPC).

Chapter 2. Procedure

Section 2.1. Start of the interruption

The date of the interruption is the event date previously listed.

Nevertheless, if the event is death or disability of the applicant or holder (R142 (1) (a) EPC) and if the latter had an agent, the interruption appears to occur only on the date of the request of that agent (unless a clause under R152 (9) EPC indicates that the mandate terminates in the event of the death of the principal, R142 (1) (a) EPCsecond sentence).

This interruption is automatic.

This date is entered in the REB (R143 (1) (t) EPC).

Section 2.2. Interrupt notification

When the EPO is aware of the event interrupting the proceedings, the latter as well as the cause of the interruption shall be notified to the parties (E-VI 1.1 Guidelines).

Section 2.3. Effet de l’interruption

Outre la conséquence sur les délais (voir plus bas), il faut garder en tête que l’interruption a un effet rétroactif : ainsi, si une décision (ou n’importe quel acte de procédure) devait être prise après la date d’interruption, celle-ci serait réputée n’avoir finalement jamais eu lieu (T1389 / 18).

Section 2.4. Fin de l’interruption

2.4.1. Cause de l’interruption en lien avec le demandeur/titulaire

If the problem causing the interruption was related to the applicant / holder (R142 (1) (a) EPC or R142 (1) (b) EPC), and if the European Patent Office is aware of the identity of a person authorized to continue the proceedings (eg heir, guardian, trustee, etc.), the EPO informs him that the procedure will be resumed on the expiry of a specified period (R142 (2) EPC).

2.4.2. Cause de l’interruption en lien avec le mandataire

If the problem causing the interruption was related to the agent (R142 (1) (c) EPC), the EPO resumes the procedure as soon as a new representative is appointed (in practice the EPO sets a date for resumption in the future).

If within a 3 months after the beginning of the interruption, no new representative is appointed (R142 (3) EPC):

  • and if the applicant / holder has the obligation to be represented (A133 (2) EPC),
    • the EPO requests the applicant / holder to appoint a representative in the 2 months ;
    • a copy of the notification is also sent to the other parties (E-VI 1.2 guidelines).
    • failing to appoint a representative within the prescribed time, the application shall be deemed to be withdrawn or the patent revoked (R142 (3) (a) EPC);
  • if not,

TheA121 EPC is applicable to the 2 months notice period for the applicant.

TheA122 EPC is applicable to the 2 months notice period for the holder.

In all other cases, the EPO will have to wait until the problem has disappeared to resume the procedure.

This date is entered in the REB (R143 (1) (t) EPC).

Chapter 3. Effect on deadlines

Section 3.1. Principle

All interrupted deadlines start running again in their entirety from the date of resumption of the procedure (R142 (4) EPC).

Section 3.2. Exception: suspension of time

There are, however, two exceptions for which deadlines are suspended (and not interrupted) (R142 (4) EPC):

  • deadline for submission of the request for examination:
  • deadlines for the payment of renewal fees (ie 6 month payment period with surcharge J902 / 87 = J ../87, "Decision of the Legal Board of Appeal, dated 17 August 1987 J ../87” , OJ 1988, 323):
    • the annual fees expired during the interruption can thus be paid:
      • without surcharge, the day of the recovery or
      • with surcharge for the next 6 months;
    • there is no minimum period of 2 months in the case of annual fees.

Suppose an interruption of proceedings occurs during the 6-month period of the R70 (1) EPC to submit the request for examination.

As indicated above, the time limit for filing the request for examination is simply suspended:

Here is an example with the annual taxes:

Section 3.3. Focus on the foreclosure period of the A122 EPC

The interruption of proceedings also interrupts the foreclosure period of theA122 EPC.

Thus, if an appeal is lodged against a decision based on such foreclosure, that decision must be revoked and the case must be remitted at first instance (J902 / 87 =J ../87, OJ 1988, 323).

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