Brief outline of the case
The OD revoked the patent and the proprietor appealed.
The OD found that the opposition was admissible and that the claimed subject-matter did not involve an inventive step.
The board held the opposition admissible and confirmed the revocation.
The board refused a request for enlargement by at least one additional legally qualified member.
The board also refused to refer certain questions to the EBA.
We will discuss here the admissibility of the opposition.
The proprietor’s point of view on the admissibility of the opposition
The proprietor has contested the admissibility of the opposition for a series of reasons.
Representation
The proprietor argued that Art 133 and 134, together with R 152 and the Decision of the President of the EPO of 12 July 2007, do not constitute a complete and self-contained set of rules on representation in proceedings established by the EPC. National laws governing representation were also relevant.
The relevance of national laws was invoked in two ways. The proprietor referred to both German law, and French law, and contended the existence under Art 125 of a procedural principle that prevented the opponent from appointing Mr N. as representative, since such an authorisation formed a “self-dealing” situation in which Mr N., in his function as the president of a “société simplifiée unipersonnelle”, SASU, appointed himself as a professional representative in this case.
Yet, such a self-dealing, also known as “Insichgeschäft” under German law or “transactions intéressées” under French law, was illegitimate and rendered the appointment null and void.
Identity of the opponent
The proprietor argued that the identity of the opponent could not be unequivocally established whereby the uncertainty arises because it is unclear whether Mr N, the opponent’s representative, lodged the opposition on behalf of himself or in another capacity, such as the president, director, or company secretary of SARL Cabinet NÜ.
The proprietor pointed out that Mr N. signed documents using his status as a European patent attorney and included his representative number, which typically suggests he was acting on behalf of a third party.
The proprietor further argued that, if Mr N had intended to act on behalf of himself or in his capacity as the president of SARL Cabinet NÜ, there would have been no need to reference his status as a European patent attorney.
Since European patent attorneys usually act for third parties, this raises doubts as to whether Mr N was acting in his personal capacity or as a representative of the company.
Circumvention of the law
The opponent referred to G 3/97 and argued that the opponent is a company that, by filing an opposition, is conducting activities that are reserved to professional representatives.
Change of the opponent’s name
The proprietor queried the change of name of the opponent from SASU to SARL, and concluded that the change of the opponent rendered the opposition inadmissible.
German version of the claims
The proprietor also queried the fact that the opponent referred, in its notice of opposition, to the German translation of the claims, and not to the version of the patent in the language of the proceedings.
The board’s decision on the admissibility of the opposition
Representation
For the board, the applicable legal rules of representation constitute a complete and self-contained set of rules on representation in proceedings established by the EPC.
The opponent is a French company. According to the available evidence, Mr N is not an employee, but the president of a “société simplifiée unipersonnelle” (SASU) under French law. In this capacity, he was entitled to represent SASU Cabinet NÜ at the time the opposition was filed.
The fact that Mr N. is a professional representative cannot have a negative impact on his competence and ability to represent the opponent as the president of the SASU, since under French law he is entitled to act on behalf of the legal person in all circumstances.
The fact that Mr N is a professional representative can only mean that he would be entitled to act in proceedings before the EPO not only as the president of the SASU, but also as a professional representative appointed by that legal person.
If one considers the approach using French, and German law as evidence of a general principle under national law prohibiting the concept of “self-dealing”, the board held that it was unclear what legal (procedural) gap existed that would need to be filled under Art 125, which is a prerequisite for its application.
Even if these provisions were considered sufficient, they pertain to substantive law rather than to procedural matters. These provisions in fact address conflicts of interest in private legal transactions, not the granting of an authorisation from a company to a representative for legal or court proceedings. In the present situation, it was unclear what potential conflict of interest might exist.
Identity of the opponent
The opposition was clearly filed on behalf of SARL Cabinet NÜ. The only uncertainty, based on the submissions of the proprietor itself, would concern whether Mr N is representing the opponent as a European patent attorney appointed by SARL Cabinet NÜ or in his capacity as the president of that company.
Nonetheless, the board found it difficult to understand how this alleged ambiguity could raise any doubt about the identity of the opponent in the present proceedings.
Circumvention of the law
In the present case, Mr N is a qualified professional representative. There is no indication that an unqualified person is acting as a representative by filing oppositions on behalf of third parties.
Therefore and contrary to the proprietor’s allegation, the involvement of the present opponent cannot be regarded as “circumventing the law by abuse of process” within the meaning of Headnote 1(b) of G 3/97.
Change of the opponent’s name
According to Art 15(8) RPBA, the board endorsed the analysis set out in Reasons 3.1.5 and 3.1.6 of the OD’s decision.
The documents on file showed that merely a change of name occurred, but no new legal entity had been created by the change of legal form.
The original submission might have been made on a business letter including the old legal form, but shortly after, a further submission was done on a business letter indicating the new legal form. A change or an error in stationary could not undermine the reality of the change in legal form.
German version of the claims
The fact that the notice of opposition referred to the German version of the claims, while the language of the proceedings is English, did not make the respective attacks incomprehensible. Hence, this cannot be a reason to consider the opposition inadmissible per se.
Comments
It is always tempting for a proprietor to have the opposition to be deemed not admissible, as it avoids any decision on the substance.
In T 2095/21, commented in this blog, the proprietor queried in vain the admissibility of an opposition filed by a firm of qualified representatives.
In T 130/21, also commented in this blog, the proprietor queried in vain the admissibility of an opposition, as it considered that the legal form of the opponent was unclear and hence the opponent could not be properly identified.
In the present case, we have here a further, failed, attempt by a proprietor to query the admissibility of an opposition combining in a sense both preceding subject-matter.
Comments
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