T 0846/22 - European Oppositions Limited

Key points

• The opponent is "European Oppositions Limited".
• "I. The opponent appealed against the Opposition Division's decision that, account being taken of the amendments made by the patent proprietor during the opposition proceedings according to auxiliary request 1, the European patent and the invention to which it relates met the requirements of the EPC."
• "The respondent requested that the decision under appeal be set aside and the opposition be held inadmissible."
• This raises two interesting questions. First, is the opposition admissible as such?
• Question for EQE candidates: what should be checked?
• The Board: "the opponent's representative [i.e., professional representative] was appointed in accordance with the requirements of the EPC. Hence, there is no reason for the Board to doubt that the representative was duly authorised. "
• The requirements of G3/97 are, therefore, complied with - there is  no circumvention of the law (Article 133/134 EPC) in the sense of the headnote of G3/97 and point 4.2.1 of the reasons.
• There is an issue with the company being registered as "dormant" in the UK register, but that topic seems fact-specific.
• The Board holds the opposition admissible.
• However, suppose the opposition was inadmissible. Would the examination of the admissibility of the opposition in appeal trump the prohibition of reformatio in peius? Could the non-appealing proprietor get the patent as granted reinstated in the appeal of the opponent?
• T 0882/17 said not, based on extensive reasoning. The present decision does not comment on the issue and examines the admissibility of the opposition. 
• The appeal is dismissed.

EPO 

The link to the decision and an extract of it can be found after the jump.

https://www.epo.org/en/boards-of-appeal/decisions/t220846eu1

1. Admissibility of the opposition and the appeal

The respondent argued that the opposition and the appeal were not admissible.

1.1 It submitted that the appellant, a UK company, had been a "dormant company" under UK law at the time of filing the opposition and had never changed this status. This meant that the appellant was not entitled to conduct any business and could not be equated to a legal person.

Under Article 99(1) EPC "any person may give notice to the European Patent Office of opposition [ ... ] in accordance with the Implementing Regulations". "Any person" is to be interpreted in line with Article 58 EPC as "any natural or legal person, or any body equivalent to a legal person by virtue of the law governing it" (G 3/99, point 9 of the Reasons, G 1/13 point 2.3.3 of the Reasons).

The status of a legal person as such, i.e. the question as to whether it has capacity to sue or be sued, is a matter of national law. The right to bring opposition proceedings, to take part in such proceedings, to file an appeal and to take part in appeal proceedings is, by contrast, a matter of procedural law governed by the EPC (G 1/13, ooint 5.3 of the Reasons with reference to G 3/97, point 2.1 of the Reasons).

The respondent questioned the status of the appellant as a legal person as such. Hence, it has to be established whether the appellant, the company European Oppositions Limited, in particular at the time of filing the notice of opposition and the notice of appeal, had the status of a legal person.

Section 1169 of the Companies Act 2006 which applies throughout the UK defines a dormant company. A company is dormant during any period in which it has no significant accounting transactions. A dormant company can be reactivated. Engaging in significant transactions may result in a dormant company losing its dormant status.

Although inactive, a dormant company is not struck off, but remains on the Companies House register. This means that a dormant company maintains the status of a legal person. The Board agrees with the conclusion drawn to this effect in T 184/11 (point 2.2 of the Reasons).

It follows that the appellant had the status of a legal person at the time of filing the notice of opposition and throughout the opposition and appeal proceedings. The respondent's argument in this respect is therefore not convincing.

1.2 The respondent also argued that the appellant could not have paid the opposition or the appeal fee and could not have appointed an authorised representative. Moreover, it was evident that the appellant had been acting on behalf of a third party with the intention of avoiding any liability for possible costs apportioned to the appellant under Article 104 EPC. This amounted to an abuse of procedure.

However, whether the appellant engaged in transactions which could have led to the loss of its dormant status goes beyond the assessment of its status as a legal person. The assessment of potential financial relationships between a dormant company and an appointed representative is of no relevance to establishing the legal status of the company as a legal person either.

Moreover, the opponent's representative was appointed in accordance with the requirements of the EPC. Hence, there is no reason for the Board to doubt that the representative was duly authorised. The remaining provisions under the EPC for the admissibility of the opposition and appeal, including the payment of the relevant fees, were also complied with.

As regards the contention that the appellant had been acting on behalf of a third party with the intention of avoiding any liability for possible costs apportioned to the appellant under Article 104 EPC, the Board notes that acting on behalf of a third party cannot be seen as a circumvention of the law unless further circumstances are involved (G 3/97, point 3.2 of the Reasons) and there is no requirement under the EPC that a party be equipped with sufficient financial means to comply with a merely hypothetical costs order. Moreover, the EPC does not offer the patent proprietor any kind of guarantee that an opponent will be able in fact to reimburse costs awarded against him (G 3/97, point 3.2.6 of the Reasons).

For these reasons, the Board does not see any abuse of procedure by the appellant which might render the opposition and/or the appeal inadmissible.

1.3 In conclusion, the respondent's requests that the decision under appeal be set aside and the opposition be held inadmissible or that the appeal be held inadmissible must be refused.