T 1262/22 - Authorizations and appointments

Key points

• Decision taken during oral proceedings on 17.09.2024, written decision issued 09.09.2025. There was a communication under Art. 15(9) RPBA informing the parties that the issue would be issued within three months. 
• Strictly speaking, Article 15(9) RPBA does not oblige the Board to issue a second communication in the event of further delays.
• "While representation during the opposition proceedings was undertaken by BIP Patents (in the following "BIP"), the notice of appeal was signed by a new professional representative, König Szynka Tilmann von Renesse Partnerschaft mbB (KSTvR). Since BIP had not informed the EPO of the termination of its authorisation, it was still deemed authorised before the EPO, as provided for by Rule 152(8) EPC. Hence, there was nothing unusual in the fact that the EPO continued to communicate with BIP, nor can it be concluded on this basis that KSTvR was not authorised, as submitted by the respondents."
• "Although the EPO did not request the appellant to provide an authorisation after the notice of appeal was filed, the new representative KSTvR filed an individual authorisation of its own motion on 5 April 2022. The authorisation had been granted by the opponent, Bayer AG, on 25 March 2022."
• "Therefore, the consequence indicated in Rule 152(6) EPC, according to which if the required authorisation is not filed in due time any procedural step taken by the representative is deemed not to have been taken, did not materialise. The notice of appeal was thus validly filed."
• "Nor is this conclusion affected by the fact that KSTvR's authorisation bears a signature which is dated 25 March 2022, i.e. after the filing of the notice of appeal. Contrary to the respondents' submissions, the EPC does not express a requirement that the authorisation be signed before the filing of the notice of appeal; this would even be inconsistent with the purpose of Rule 152(2) EPC, which allows for a deficiency concerning the filing of an authorisation to be remedied. "
• This is established case law indeed. Although I would not exclude the possibility that some other patent offices view it differently under their own national laws.
• "An authorisation is an internal legal relationship between the representative and the party. Accordingly, the question of whether an authorisation was in existence at the time the notice of appeal was filed is irrelevant for the EPO, as long as any deficiency concerning the party's representation was remedied within the time limit under Article 108 EPC."
• The terminology remains challenging. We have the authorisation, the appointment, and, under Rule 41(2)(d), the indication of the representative in the Request for grant "if the applicant has appointed a representative" (implying that the appointment exists before the naming of the representative to the EPO). 

EPO 

The link to the decision can be found after the jump.

https://www.epo.org/en/boards-of-appeal/decisions/t221262eu1