T 1389/13 - Admissibility appeal; wrong name

Key points

• In this opposition appeal, the Notice of appeal was filed in the correct (new) name of the opponent, but the Statement of grounds mentioned the old name on the second page. The Board concludes that this does not lead to inadmissibility of the appeal
• " The statement of grounds of appeal that was subsequently received was signed by the same representative who had signed the notice of appeal and the notice of opposition. The appeal case number, the number of the patent in suit, the name of the (then sole) patent proprietor and the internal reference number mentioned in the document corresponded to the indications provided in the notice of appeal. Explicit reference was made to the "appeal of opponent filed on 13 June 2013"." 
• "The fact that "Bayer Schering Pharma AG", the opponent's former name, as proven by the documentary evidence, was indicated on the second page of the statement of grounds of appeal as the legal person on behalf of which the document was submitted, points to the fact that it was indeed on behalf of the opponent and not on behalf of a third party."
• " considering that there is no indication on file that a legal person called "Bayer Schering Pharma AG" existed at the point in time when the statement of grounds was filed, the mentioning of "Bayer Schering Pharma AG" in the statement of grounds of appeal is an obvious error and it is evident that it should read "Bayer Pharma AG" (or "Bayer Pharma Aktiengesellschaft").
• " Thus, the board has no doubt that the statement of grounds of appeal in question was indeed filed on behalf of the opponent, i.e. the party referred to as appellant II in these appeal proceedings." 
• The Board does not identify a formal request for correction of the appellant's name under Rule 139.
• There was also a request of the patentee for apportionment of costs. " The board notes that the latter line of argument on the perceived misconduct on the part of the EPO (the board dealing with the case) has no bearing on the board's decision about a different apportionment of costs under Article 104 EPC since the EPO is not a party to the proceedings, nor is it conceivable that the delay in forwarding the communication or the non-issuance of a written preliminary opinion can be ascribed to [the opponent]. Hence, these submissions need not be dealt with." 

EPO T 1389/13 -  link

Reasons for the Decision

1. The appeals of both appellants are admissible. Each of them complies with the requirements pursuant to Articles 106 to 108 and Rule 99 EPC.

2. Admissibility of the opponent's (appellant II's) appeal had been contested by appellant I based on the argument that no statement of grounds of appeal pursuant to Article 108, third sentence, EPC had been filed by the opponent, and the statement of grounds of appeal in question had been filed by a different legal person.

3. Notice of appeal dated 13 June 2013 was duly filed by the opponent Bayer Pharma Aktiengesellschaft and the appeal fee was duly paid. The notice of appeal comprises, in addition to the details required pursuant to Rule 99(1) EPC, the party's internal reference number.

4. The statement of grounds of appeal that was subsequently received was signed by the same representative who had signed the notice of appeal and the notice of opposition. The appeal case number, the number of the patent in suit, the name of the (then sole) patent proprietor and the internal reference number mentioned in the document corresponded to the indications provided in the notice of appeal. Explicit reference was made to the "appeal of opponent filed on 13 June 2013".

5. The fact that "Bayer Schering Pharma AG", the opponent's former name, as proven by the documentary evidence, was indicated on the second page of the statement of grounds of appeal as the legal person on behalf of which the document was submitted, points to the fact that it was indeed on behalf of the opponent and not on behalf of a third party.

6. Also, considering that there is no indication on file that a legal person called "Bayer Schering Pharma AG" existed at the point in time when the statement of grounds was filed, the mentioning of "Bayer Schering Pharma AG" in the statement of grounds of appeal is an obvious error and it is evident that it should read "Bayer Pharma AG" (or "Bayer Pharma Aktiengesellschaft").

7. Thus, the board has no doubt that the statement of grounds of appeal in question was indeed filed on behalf of the opponent, i.e. the party referred to as appellant II in these appeal proceedings.

8. Furthermore, there is no doubt, and this has not been contested, that the four-month time limit under Article 108, third sentence, EPC has been met.

9. Accordingly, appellant II has duly submitted a statement of grounds of appeal, and its appeal is thus admissible.

10. Appellant II was duly summoned but did not attend the oral proceedings, in accordance with its announcement to the board on 20 June 2018. The oral proceedings took place as scheduled in accordance with Article 116(1) EPC, first half-sentence, and Rule 115(2) EPC. Appellant II was treated as relying on their written case in accordance with Article 15(3) RPBA.