T 448/09 – Devoid Of Object

The patent proprietor filed an appeal against the decision of the Opposition Division (OD) to maintain the patent in amended form.

The OD had also taken a decision on the apportionment of costs:

In its statement of ground of appeal, the patent proprietor requested the Board to maintain this decision.

This gave the Board the opportunity to explain the extent of the devolutive effect of appeals:

[7] The appellant requested to maintain the decision with respect to the apportionment of costs and the request for fixing costs as referred to in paragraph 5 of the interlocutory decision in opposition proceedings dated 5 December 2008.

The Board, however, observes that this part of the decision of the opposition division has not been appealed. The devolutive effect of an appeal before a board extends only to the part of the impugned decision which is indicated in the notice of appeal as provided in R 99(1)c). This in turn implies that the part of the impugned decision not indicated in the notice of appeal becomes final on expiry of the time limit for filing an appeal and cannot later become an object of the appeal proceedings.

In the present situation, the aspect of the decision relating to the apportionment of costs was not appealed and is thus res judicata. The appellant’s request to maintain the decision with respect to the apportionment of costs is thus devoid of object.

Similarly, the appellant’s request to maintain the decision with respect to the fixing of costs is devoid of object since no such decision has been taken so far. As specified under point 5(d) of the decision under appeal the OD shall, on request, fix the amount of costs to be paid under a final decision apportioning them. Although the decision concerning the apportionment of costs has become final, no request regarding the fixing of costs has yet been filed.

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