T 0376/23 - Acting without PoA

Key points

• The Board, in translation: "The patent holder's appeal, filed on February 17, 2023, was initially ineffective because it was signed by attorney Dr. B, who was not authorised to do so [*]. " (Dr. B was not a European patent attorney but a German lawyer). 
• [*] - The Board wishes to express that the required signed PoA (authorisation) was not filed with the EPO. This is not exactly the same as the attorney acting without instructions from the principal/client/proprietor. 
• At the time (2023), "authorised lawyers must (always) file a signed power of attorney or a reference to a registered general power of attorney". Of course, nowadays that is no longer the case. 
• "the patent proprietor's power of attorney dated February 17, 2023, is not in the name of Attorney Dr. B, but merely in the name of B legal Partnerschaft von Rechtsanwälten mbB ... . The signatory of the appeal brief also does not benefit from the legal fiction under Rule 152(11) EPC, according to which the authorisation of an association of representatives is deemed to be an authorization for each representative who provides proof that he or she acts within that association. Firstly, it is not apparent that B legal Partnerschaft von Rechtsanwälten mbB is an association within the meaning of this provision. Secondly, Rule 152(11) EPC is not applicable to lawyers (see J 8/10, OJ EPO 2012, 473, Reasons 11; cf. also the case decided in T 1846/11). Therefore, since Attorney Dr. B was not effectively authorised, he was to be treated as a person not entitled to file the patent holder's appeal at the time the appeal was lodged."
• "it should also be taken into account that a procedural act by an unauthorised person is to be treated in the same way as a missing signature (see G 3/99, OJ EPO 2002, 347, Reasons 20). A notice of appeal must be signed in accordance with Rules 99(3) and 50(3), first sentence, EPC. If the appellant fails to do so, the EPO will invite it, in accordance with Rule 50(3), second sentence, EPC, to sign the notice of appeal within a specified time limit. If the notice of appeal is signed in due time, it retains its original date of receipt in accordance with Rule 50(3), third sentence, EPC; otherwise, it is deemed not to have been filed"
• "The patent proprietor filed a copy of the statement of appeal on March 28, 2023, within the two-month time limit set by [registry's] communication of March 1, 2023. The copy bore the signature of Dr. H, the professional representative duly authorised under Rule 152(11) EPC [*]. The patent proprietor thus properly remedied the defect described above in paragraphs 1.1.2 and 1.2. Therefore, the statement of appeal is to be treated as having been validly filed on February 17, 2023."
• * - Dr H filed a properly signed authorisation correctly stating the association he belonged to.
• The opponent argued that Rule 50(3) and G3/99 do not apply, and that instead Rule 152(6) applies (and, likely, that a PoA to Dr B should have been filed, not a copy of a Notice of appeal filed by Dr H). The Board leaves it open, referring to the protection of legitimate expectations.
• The Board examines the presented set of claims, finds them all unallowable or inadmissible, and revokes the patent (the opponent had also appealed). 

EPO 

The link to the decision is provided after the jump.

https://www.epo.org/de/boards-of-appeal/decisions/t230376du1