T 2564/12 - Assumed integrity of the representative

Key points

• A professional representative acted as opponent, the appeal was filed by the company that was his client. The Board considers this to be a mistake that can be corrected under Rule 139 EPC, so that the appeal is admissible. 
• The Board: " in view of these submissions made by Dr. N, taking into account the fact that the notice of opposition and the notice of appeal, both filed by the same firm of patent agents, included corresponding subject references and identical own case reference numbers [], and in view of the statements of Dr. N in his affidavit [], given the assumed integrity of the professional representative, the board accepts that sufficient evidence is provided by the requester that the opponent, i.e Dr. N, truly intended to file the appeal in his own name." 

EPO T 2564/12 -  link

Reasons for the Decision

1. Request for correction of the appellant's name and address in the notice of appeal - admissibility of the appeal

1.1 Notwithstanding the fact that the respondent no longer pursued its request that the appeal be held inadmissible (see point XV above, 2nd paragraph), the board is in any case required to examine the admissibility of the appeal ex officio (cf. Article 110 EPC and Rule 101 EPC).

1.2 The board notes (cf. point VI above) that it was made known during the opposition proceedings that the opponent, i.e. Dr. [N], was acting "in his own name but to the exclusive interest of ADVA AG Optical Networking". In other words, in the course of the opposition proceedings, it was made clear that Dr. N was a so-called "straw man" acting on behalf of the principal ADVA. The notice of appeal was however filed in the name of ADVA, who was not a party to the opposition proceedings. A request to correct the name and address of the appellant to those of the opponent was filed subsequently (cf. point X above), but only after the end of the time limit set under Article 108 EPC had elapsed. The question thus arises whether the notice of appeal is correctable in this case.

1.3 In accordance with the case law of the boards of appeal, the name and address of the appellant in a notice of appeal is correctable provided that the appellant was identifiable at the end of the period for filing the notice of appeal and that it can be established with sufficient confidence on the basis of the information in the appeal or otherwise on file that the corrected version represents the true intention of the appellant and is not the result of a change of mind (cf. G 1/12, reasons 21 to 23 and 26 to 28, OJ EPO 2014, 112). The party requesting the correction has the burden of convincing the board that an error and not a change of mind has occurred (G 1/12, reasons 28 and 29).

1.4 The board takes the view, given the known relationship between Dr. [N] and ADVA (cf. points V to VII above), that the true appellant was identifiable from the file, even if not correctly identified in the notice of appeal.

1.5 Further, the board notes that, at the oral proceedings held on 13 November 2015 before the board, Dr. N submitted an account as to how the error had come about. According to that account, Dr. N instructed a paralegal of the agency, who then composed the letter giving notice of appeal erroneously in the name of ADVA. As Dr. Nwas absent, the letter was signed instead by his colleague, Dr. [L], who did not notice the mistake. No evidence was however offered from the paralegal to support this account.

1.6 Even though no written evidence was offered from the paralegal to support this account, in view of these submissions made by Dr. N, taking into account the fact that the notice of opposition and the notice of appeal, both filed by the same firm of patent agents, included corresponding subject references and identical own case reference numbers (cf. points V and VII above), and in view of the statements of Dr. N in his affidavit (cf. point X above), given the assumed integrity of the professional representative, the board accepts that sufficient evidence is provided by the requester that the opponent, i.e Dr. [N], truly intended to file the appeal in his own name.

1.7 It further remains to be said that there is no evidence at all which would render plausible the alternative scenario of the correction reflecting a change of mind after the filing of the notice of appeal.

1.8 Consequently, the request for correction of the name and address in the notice of appeal is allowed (Rule 139 EPC).

1.9 The appeal complying with Articles 106 to 108 EPC and Rule 99 EPC, it follows that the appeal is admissible (Rule 101(1) EPC).