Proceedings for the preservation of evidence and the subsequent infringement proceedings are two separate proceedings and only the latter is relevant for starting an intervention in opposition proceedings according to Art. 105 EPC.
The admissibility of an intervention should be established at the moment of intervention and this cannot be changed by later events.
Case date: 07 May 2019
Case number: T 0439/17
Court: European Patent Office (EPO), Board of Appeal
A full summary of this case has been published on Kluwer IP Law.