The applicable starting point for calculating the three month period for intervention under Article 105(1) EPC is always the date of the institution of the first court action. Where a court action for infringement was first brought by a patentee against an alleged infringer, Article 105(1) EPC first sentence applies, even though the latter later instituted a court action seeking a declaration of non-infringement under Article 105(1) EPC second sentence, with regard to the same patent.

Admissibility of intervention of assumed infringer (no) - too late
Entitlement to priority (yes) - same invention
Citability of prior art document (no)
Novelty (yes)
Inventive step (yes)
Enlarged Board - referral (no)

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