T 0979/12 - Appeal in name of only one of joint parties

EPO T 0979/12

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Key point

• An appeal filed by common representative of joint opponents in the name of only one opponent is admissible, because that the true intention of the common representative was to file the appeal in the name of the same party that he acted for during opposition proceedings, i.e. the joint opponents (G 1/12). 

Reasons for the Decision

Admissibility of Opponent 03's appeal

1. A notice of appeal in Dutch against the decision of the Opposition Division was filed with letter of 19 April 2012 by C. Boerma, expressly on behalf of the opponent, Unilever N.V.. The Appellant attached to the notice of appeal a voucher to debit its deposit account with the amount due as appeal fee and filed with letter of the same day a translation into English of the notice of appeal.

It is in this respect undisputed that in opposition proceedings Unilever N.V. and Unilever PLC acted as joint opponents (Opponent 03) and were represented by the same common representative [mr. X].

1.1 According to the reasons of the decisions of the Enlarged Board G 0003/99 (OJ 2002, 347) and R 0018/09, an opposition filed by several persons in common is to be dealt with as an opposition filed by only one party and such a group of common opponents is to be considered as a single party represented by a common representative (see G 0003/99, points 14 and 15 of the reasons) and, should such a group of common opponents file an appeal, they can only do so jointly as a single party acting through their common representative (see G 0003/99, point 17 and R 0018/09, reasons, point 5).

1.2 The Board remarks that according to the ruling of G 0001/12 (points 28 and 29 of the reasons), which fully endorses the decision T 0097/98 (OJ 2002, 183), the true intention of the appellant must be established "on the basis of the information in the appeal or otherwise on file, i.e. ascertain who must be deemed in all likelihood to have filed the appeal...".

As decided in T 0097/98 (point 1.5 of the reasons) "[i]t can also be presumed that it is the intention of the representative to act in such a way as to ensure that the appeal is admissible in order for it to be dealt with in substance; see in this respect e.g. decision T 920/97 dated 19 December 2000, point 1 of the reasons, where it is stated that in the absence of any clear indication to the contrary a professional representative who was authorised to act for a party adversely affected by a decision and then filed an appeal against this decision must be presumed to be acting on behalf of the same party that he acted for in the first instance proceedings...".

Therefore, even though the notice of appeal of 19 April 2012 mentioned only Unilever N.V. as appellant, there is no doubt, in the Board's view, that the true intention of the common representative was to file the appeal in the name of the same party that he acted for during opposition proceedings, i.e. the joint opponents Unilever N.V. and Unilever PLC.

1.3 In this respect it must also be noted that according to G 0003/99 (point 3 of the order) "[i]n order to safeguard the rights of the patent proprietor and in the interests of procedural efficiency, it has to be clear throughout the procedure who belongs to the group of common opponents or common appellants. If either a common opponent or appellant (including the common representative) intends to withdraw from the proceedings, the EPO shall be notified accordingly by the common representative or by a new common representative determined under Rule 100(1) EPC in order for the withdrawal to take effect."

In the present case the EPO has not received any notification by the common representative of Unilever N.V. and Unilever PLC that Unilever PLC intended to withdraw from the proceedings.

Therefore, both parties, acting through the common representative, are for the EPO still joint opponents and now appellants.

Hence, the Board cannot follow the Respondent's argument that it would not be clear which party is the appellant in the present case and that the appeal thus would not comply with the requirements of Rule 99(1)(a) EPC.

1.4 As regards the Respondent's argument that the appeal had been filed deliberately in the name of Unilever N.V. in order to ensure legal certainty to the request for fee reduction according to Rule 6(3) EPC and that therefore it was the representative's true intention not to file the appeal also in the name of the co-opponent Unilever PLC, the Board remarks that

- the issue of the entitlement to the reduction of the appeal fee according to Rule 6(3) and Article 14(4) EPC is irrelevant for deciding on the admissibility of the appeal since the Appellant correctly paid the appeal fee in full by attaching a voucher to the letter of appeal and, as an additional step, requested the partial refund of the fee;

- moreover, the representative's true intention in filing the appeal has to be established on the basis of the criteria indicated in point 1.2 above, which, taking the reasoning given supra into account, leads without doubt to the conclusion that the representative's true intention was to file the appeal in the name of the joint opponents Unilever N.V. and Unilever PLC.

Therefore, in the Board's view, there is no doubt that in the present case Unilever N.V. and Unilever PLC are joint appellants.

1.5 The Board thus concludes that Opponent 03's appeal complies with the requirements of Rule 99(1)(a) EPC and is admissible.