T 0819/15 - Identity appellant

Key points

• This is a straightforward case where the appeal was filed in the wrong name. The Board allows a correction in the identity of the appellant in line with G1/12.
• " the notice of appeal has been filed by the representative of the opponent in the first-instance proceedings, under the same internal reference, referring to the same patent, the same patent proprietor and mentioning the correct date of the impugned decision []. Thus sufficient elements were provided to indicate that a mistake occurred in the naming of the appellant and that a correction of this name is allowable." 
• " The correction of the notice of appeal does not reflect a later change of mind as to whom the appellant should be, but on the contrary only expresses what was intended when filing the appeal". 
• The appeal is admissible (and successful, the patent is revoked). 

EPO T 0819/15 -  link

Reasons for the Decision

1. Admissibility of the appeal

1.1 It is undisputed that, within the two-month period under Article 108, first sentence, EPC, the representative of the opponent in the first-instance proceedings filed notice of appeal which did not contain the name and address of any of the parties to the first-instance proceedings. Rather the notice of appeal contained the name and address of another legal person.

With the grounds of appeal, the same representative requested correction of the appellant's name and address. The board's registrar dispatched a communication according to Rule 101(2) EPC and the representative filed a corrected notice of appeal within the specified period.

1.2 According to decision G 1/12, OJ EPO 2014, A114, such a deficiency can be corrected under Rule 101(2) EPC, if the true intention was to file on behalf of the legal person who should have filed the appeal. The board assesses the evidence supporting such "true intention" in accordance with the free evaluation of evidence.

1.3 The board notes that the notice of appeal has been filed by the representative of the opponent in the first-instance proceedings, under the same internal reference, referring to the same patent, the same patent proprietor and mentioning the correct date of the impugned decision (see also decision T 540/09, Reasons, point 1). Thus sufficient elements were provided to indicate that a mistake occurred in the naming of the appellant and that a correction of this name is allowable.

1.4 Upon this basis the board finds that the true appellant was identifiable on expiry of the two-month period under Article 108, first sentence, EPC. The true intention of the appellant was to file the notice of appeal in the name of Per Aarsleff A/S, the opponent in the proceedings before the opposition division. The correction of the notice of appeal does not reflect a later change of mind as to whom the appellant should be, but on the contrary only expresses what was intended when filing the appeal (see G 1/12, loc. cit. and Case Law of the Boards of Appeal, 9th edition 2019, V.A.2.5.2 a) and also V.A.2.4.1 a)).

1.5 These findings are confirmed by the facts that the actual appellant was the only party affected by the rejection of the opposition and that the file shows no indication that the appellant had or was seeking to transfer his status as opponent to a third party. In addition, the legal person named in the notice of appeal has, as far as the board is aware, no connection whatsoever to the opponent or the subject matter of this case, neither is there any similarity between the name of this legal person and that of the opponent.

1.6 In view thereof, the appeal is admissible.