Rule 85 – Stages of the proceedings (ex parte proceedings)

1. Subject to paragraph 2, where an action is brought against a decision of the European Patent Office in carrying out the tasks referred to in Article 9 of Regulation (EU) No 1257/2012 (hereinafter "decision of the Office"), proceedings before the Court of First Instance shall consist of:

(a) a written procedure, which shall include a possibility for interlocutory review by the European Patent Office;

(b) an interim procedure, which may include an interim conference; and

(c) an oral procedure which, at the request of the claimant or at the instance of the Court, may include an oral hearing.

2. This Rule and Rules 88 (save as expressly provided for in Rule 97.2), 89 and 91 to 96 shall not apply to an expedited action against a decision of the Office pursuant to Rule 97.

Case Law

Court of Appeal

IPPT20250916, UPC CoA, Bodycap v EPO
No interlocutory revision of decision of the EPO to reject a request for unitary effect. An expedited action against a decision of the Office under Rule 97(1) RoP, falls under the exception set out in Rule 85(2) RoP. Compliance with the time limit under Rule 7(3) UPR is mandatory and excluded from re-establishment of rights. A proprietor of a European patent who has not complied with this period cannot have their rights reinstated, regardless of the reasons for failing to observe the said time limit.