T 0924/17 - Authorizations under Rule 152

 Key points

• Somehow it seems have not yet posted about this decision from March 2020.
• If you as representative perform a procedural act and the EPO invites you to file an authorization under Rule 152(2), must the authorization be dated and signed before that invitation and/or prior to the procedural act?
• The Board says that this is not the case. “There is no requirement however, either in said "Decision" of the President of the EPO [Decision of the President of the European Patent Office (EPO) dated 12 July 2007 on the filing of authorisations, OJ 2007 SE3 L.1] or in Rule 152(2) EPC, for the signature's date to be prior to the filing date of the notice of appeal, let alone a requirement that any procedural step taken before the signature's date be explicitly approved in the signed authorisation. This would be tantamount to requiring proving the existence of a previous informal oral or written authorisation, which entitles the representative to act on behalf of a party ("Bevollmächtigung") and further, this would also be contrary to the intended purpose of Rule 152(2) EPC, which is clearly to allow to remedy the missing filing of the authorisation, as it appears implicit and evident that the authorisation generally relates to and encompasses any action by the new representative during specific ongoing proceedings before the EPO, as in the case in point.”
• The Board appears to suggest that T 1846/11 was specifically about the authorization to be filed by legal practitioners.

T 0924/17

https://www.epo.org/law-practice/case-law-appeals/recent/t170924eu1.html

The appeal is admissible since it complies with the requirements of Article 108 EPC and since a valid authorisation was filed by the representative on 6 June 2017, for the following reasons.

The President of the EPO determines under Rule 152(1) EPC the cases in which an authorisation shall be filed and may determine the form and the content of an authorisation (Rule 152(5)). According to Article 1(1) of the "Decision of the President of the European Patent Office (EPO) dated 12 July 2007 on the filing of authorisations" [OJ 2007 SE3 L.1] a professional representative (whose name appears in the list maintained by the European Patent Office) is required to file a signed authorisation only under the circumstances set out in Article 1(2), (3) of said "Decision" of the President.

The circumstances of the case in point are those set out in Article 1(2), wherein a change of professional representatives has occurred, without the EPO being notified that the previous representative's authorisation has terminated. In this case the new representative must file (together with the notification of his appointment) an individual authorisation (or a reference to an authorisation already on file) (Article 1(2) of the "Decision" of the President of the EPO) or, if he does not, as in the present case, he shall be requested to do so within a period to be specified by the EPO (Article 1(2) of the "Decision" of the President of the EPO and Rule 152(2) EPC).

The new representative filed in due time on 6 June 2017 a signed authorisation, following the invitation by the EPO according to Rule 152(2) EPC. The authorisation bears a signature with date of 23 May 2017, i.e. after lodging the notice of appeal.

There is no requirement however, either in said "Decision" of the President of the EPO or in Rule 152(2) EPC, for the signature's date to be prior to the filing date of the notice of appeal, let alone a requirement that any procedural step taken before the signature's date be explicitly approved in the signed authorisation. This would be tantamount to requiring proving the existence of a previous informal oral or written authorisation, which entitles the representative to act on behalf of a party ("Bevollmächtigung") and further, this would also be contrary to the intended purpose of Rule 152(2) EPC, which is clearly to allow to remedy the missing filing of the authorisation, as it appears implicit and evident that the authorisation generally relates to and encompasses any action by the new representative during specific ongoing proceedings before the EPO, as in the case in point.

Finally, the Board notes that the new representative has offered (not needed further) evidence (and already provided partial evidence in the form of E-mails between the representative and the Appellant) for the existence of a previous informal agreement with the Appellant, empowering the representative to file the notice of appeal.

The decisions cited by the Respondent are not relevant to the present case and do not contradict the above conclusions of the Board.

In particular, in case T 1846/11 a legal practitioner (not a professional representative) was involved, who is required by Article 2 of said "Decision" of the President of the EPO to always file a signed authorisation or a reference to a general authorisation already on file and who did not provide it. A later filed general authorisation was not considered as being valid at the time of filing the notice of appeal, since there was no evidence that at that point in time said legal practitioner was a member of the list of professional representative (Article 134(1)) and belonged to an association of representatives.

In case T 1685/08 an authorisation was exceptionally requested pursuant to Article 1(3) of the "Decision"" of the President of the EPO, as there were doubts as to the existence of the Appellant as legal entity and as to the representative's entitlement to act. Such an authorisation was not filed.

In decision T 267/08 an authorisation was filed which did not meet the formal requirements, in particular no original version of the authorisation had been filed and this deficiency was not remedied.

2. The Board considers that the legal situation concerning the representative's entitlement to act on behalf of the Opponent in this proceedings can clearly be derived from the EPC in conjunction with Article 1(1) and 1(2) of the "Decision of the President of the European Patent Office (EPO) dated 12 July 2007 on the filing of authorisations", as explained above. Therefore no question of law of fundamental importance arises and, in particular, none of the questions as put forward by the Respondent (cf. above point III) constitutes a question of law of fundamental importance.

Therefore, no questions of law of fundamental importance arise in the present case specifically concerning the time limit for filing an appeal (question 2) or in connection with Rule 50 (3) EPC (question 5), which is immaterial to the present decision.

Furthermore, it ensues from the above conclusions (see point 1) that no diverging case law exists concerning the case in point and therefore there is no need for a referral of the present case to the Enlarged Board of Appeal (Article 20(1) RPBA (Rules of Procedure of the Boards of Appeal)).