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 sets 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.

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.

T 1907/20 - Appointing representatives and authorizations

Key points

• The patent has two proprietors, Bosch GmbH and Samsung SDI Co. Ltd (KR), for all designated states. Bosch GmbH is the first-named proprietor.
• The proprietor appeals the decision of the OD. The Notice of appeal, filed on paper, is given on the letterhead of Bosch GmbH and signed by the in-house European patent attorney of Bosch GmbH, who is a professional representative. 
• Is the appeal validly filed?
• Going back all the way to the Request for entry into the EP phase, another European patent attorney (an in-house patent attorney of the first applicant) was appointed as the representative (common representative). That document was signed by the patent attorney himself.
• Question for EQE candidates: why was the professional representative appointed as the common representative? What other configuration could be considered but was not possible in this case?
• The Board, in the German original: "Vielmehr konnte der Beschwerdevertreter [the patent attorney] bereits bei Einreichung der Beschwerdeschrift als gemeinsamer Vertreter der gemeinsamen Patentinhaberinnen im Sinne von Regel 151(1) EPÜ handeln, und zwar ohne weitere Formalitäten, da er persönlich als zugelassener Vertreter aufgetreten ist. "
• "Auch die Bestellung eines anderen gemeinsamen Vertreters der beiden Anmelderinnen [i.e. the different professional representative appointed in EPO Form 1200, Entry into the EP phase, I think]  war kein Hindernis, den Beschwerdevertreter als weiteren gemeinsamen Vertreter der Patentinhaberinnen im Sinne der Regel 152(10) EPÜ anzuerkennen. Eine gesonderte Erklärung gegenüber dem EPA war nicht erforderlich. 
• EPC Rule 152(10): "If a party appoints several representatives, they may act either jointly or singly, notwithstanding any provisions to the contrary in the communication of their appointment or in the authorisation. "
• "Die Einsprechende hat auch nicht bestritten, dass der Beschwerdevertreter als zugelassener Vertreter nach Artikel 134 EPÜ keine Vollmacht von Samsung vorlegen muss, im Sinne von Artikel 1 des Beschlusses der Präsidentin vom 12. Juli 2007 über die Einreichung von Vollmachten (ABl. EPA 2007, Sonderausgabe Nr. 3, S. 128-129)."
• The decision was taken on 10.09.2024. The new decision on the matter (OJ 2024 A75) entered into force on  01.11.2024. 
• Apparently, the Board is bound by this decision of the President. 
• I.e., the in-house European patent attorney of Bosch GmbH can represent Samsung Co. without the need to file a power of attorney from Samsung with the EPO. Of course, if Samsung is unhappy, it could file a disciplinary complaint against the professional representative. 
• "Das Amt brauchte auch nicht von einem Vertreterwechsel im Sinne des Artikels 1, Absatz 2 des Beschlusses der Präsidentin auszugehen: Sowohl der früher für die Anmeldung tätige Vertreter als auch der Beschwerdevertreter waren nur zwei von mehreren Vertretern von Bosch nach Regel 152(10) EPÜ. Es gab keine Anhaltspunkte dafür, dass die Vertretungsbefugnis des einen endete und die Sache von dem einen auf den anderen überging. Beide waren von Anfang an bevollmächtigt, für Bosch und damit auch für Samsung zu handeln."
• From the 2007 decision:  "If the European Patent Office is informed of a change of representative involving professional representatives who are not members of the same association, without being notified that the previous representative's authorisation has terminated, the new representative must file, together with the notification of his appointment, an individual authorisation"
• The German and French texts refer more clearly to a replacement of the representative, which is not the case. 
• The Board sees no reason to request the filing of a Power of Attorney of its own motion, though the Decision of the President leaves the option to request so, also in other cases than a replacement of the representative.
• "In der mündlichen Verhandlung vor der Kammer machte die Beschwerdegegnerin geltend, die fehlende Vertretungs­befugnis des Beschwerdevertreters beruhe nicht auf einer fehlenden Vollmacht, sondern auf dem Fehlen der in Regel 151 EPÜ ausdrücklich vorgesehenen Bestellung."
• Rule 151 is titled in German: "Bestellung eines gemeinsamen Vertreters", English: appointment of a common representative. The actual topic is not the appointment of specifically a common representative, it seems. Rather, it seems to be about terminology: representatives appoint themselves in the procedure. In fact, I'm not 100% sure if a party can simply send a letter to the EPO that they 'appoint' representative X for patent application ZZZ. Should not the representative X themselves write to the EPO that they take responsibility for the case by appointing themself as the representative for the case?
• In other words, we have 1) the procedural requests of professional representatives to be registered as the professional representative for one or more specific patent applications and 2) authorizations (power of attorneys), i.e. documents that prove that the party itself agrees with the registration of a particular professional representative (or association) as the representative for their patent application. 
• "Regel 151 EPÜ verlangt jedoch nicht, dass die Bestellung des Vertreters als gesonderte Erklärung der Anmelderin oder Patentinhaberin [...] erfolgt."
• " Die in Regel 152(1) EPÜ vorgesehene und durch den Beschluss der Präsidentin bewirkte Vereinfachung des Verfahrens [i.e., that a professional representative does not normally need to file a power of attorney] wäre sinnlos, wenn die Parteien zwar keine Vollmacht, aber dennoch eine von der Anmelderin unterzeichnete oder anderweitig ausgestellte Vertreterbestellung einreichen müssten.
• "Die Beauftragung eines zugelassenen Vertreters bzw. die Erteilung einer Vollmacht an einen zugelassenen Vertreter (und gegebenenfalls die anschließende Einreichung der Vollmacht beim EPA im Erteilungs- oder Einspruchsverfahren) gilt als Bestellung eines gemeinsamen Vertreters im Sinne von Regel 151 EPÜ. "
• I don't understand this remark, or perhaps there is a different use of the term "Bestellung" than I proposed above.

With edits 09.09.2025, and with the note that I'm still struggling a bit with the concepts and terminology.

EPO 

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

T 0924/17 - Authorizations under Rule 152

 Key points

• Somehow it seems have not yet posted about this decision from March 2020.
• If you as representative perform a procedural act and the EPO invites you to file an authorization under Rule 152(2), must the authorization be dated and signed before that invitation and/or prior to the procedural act?
• The Board says that this is not the case. “There is no requirement however, either in said "Decision" of the President of the EPO [Decision of the President of the European Patent Office (EPO) dated 12 July 2007 on the filing of authorisations, OJ 2007 SE3 L.1] or in Rule 152(2) EPC, for the signature's date to be prior to the filing date of the notice of appeal, let alone a requirement that any procedural step taken before the signature's date be explicitly approved in the signed authorisation. This would be tantamount to requiring proving the existence of a previous informal oral or written authorisation, which entitles the representative to act on behalf of a party ("Bevollmächtigung") and further, this would also be contrary to the intended purpose of Rule 152(2) EPC, which is clearly to allow to remedy the missing filing of the authorisation, as it appears implicit and evident that the authorisation generally relates to and encompasses any action by the new representative during specific ongoing proceedings before the EPO, as in the case in point.”
• The Board appears to suggest that T 1846/11 was specifically about the authorization to be filed by legal practitioners.

T 0924/17

https://www.epo.org/law-practice/case-law-appeals/recent/t170924eu1.html

The appeal is admissible since it complies with the requirements of Article 108 EPC and since a valid authorisation was filed by the representative on 6 June 2017, for the following reasons.

The President of the EPO determines under Rule 152(1) EPC the cases in which an authorisation shall be filed and may determine the form and the content of an authorisation (Rule 152(5)). According to Article 1(1) of the "Decision of the President of the European Patent Office (EPO) dated 12 July 2007 on the filing of authorisations" [OJ 2007 SE3 L.1] a professional representative (whose name appears in the list maintained by the European Patent Office) is required to file a signed authorisation only under the circumstances set out in Article 1(2), (3) of said "Decision" of the President.

T 0578/14 - Communicating with party outside EPC

Key points

• In this examination appeal, the applicant was (at the time of filing the appeal) the inventor, i.e. a natural person from New Zealand. The applicant himself contacted the EPO to request an extension of time for filing the Statement of grounds, even though at that time a professional representatieve was appointed (but the applicant was unhappy with the representative). The EPO formalities officer explained that this was not possible. No Statement of grounds was filed in time.
• The decision is in substance that the Board refuses the request for re-establishment for filing the Statement of grounds. The applicant was not objectively unable to file meet the time limit for filing the Statement of grounds, the request for RE was filed late, and in any case due care had not been shown.
• In this case, the formalities officer had sent a letter directly to the applicant. This is allowable, according to the Board. "The board notes that there is nothing in the EPC which prevents the EPO, without such consent, from communicating with or notifying communications to parties not resident in an EPC contracting state. In particular, Article 133(2) EPC does not prevent the EPO from doing that.  []It goes without saying that, if a representative is appointed, the EPO has to keep him informed, e.g. by sending him a copy, as it did in the present case, of any communications it sends direct to the party." 
• Regarding whether the applicant was unable to file the Statement of grounds (due to his conflict with his then representative): " A party, however, cannot deliberately choose not to fulfil the conditions for a valid appeal, and then achieve an appellate review through the back door of a request for re-establishment of rights (see also decision T 413/91, point 4 of the Reasons). Thus, the board concludes that the "untenable" situation with the representative did not objectively prevent Mr [applicant] from instructing his former or a new representative to file a statement of grounds of appeal within the four-month period under Article 108 EPC. " 

EPO T 0578/14 -  link

3.5 The appellant challenges the point in time at which the authorisation of the representative terminated.

According to Rule 152(8) EPC, a representative is deemed to be authorised until the termination of his authorisation has been communicated to the EPO. This legal fiction means that, if or for as long as the termination of an authorisation is not communicated to the EPO, the authorisation remains effective vis-à-vis the EPO even though, for example, as between the party and its representative, the contract which they entered into has been dissolved or the party has - vis-à-vis the representative - revoked the authorisation that it gave him. For the sake of completeness, it is also pointed out that, in the case of a change of representative involving professional representatives, the provisions of Article 1(2) of the decision of the President also apply, i.e. usually either the termination of the authorisation of the previous representative is communicated to the EPO or the new representative files an individual authorisation (original and one copy) or a reference to a general authorisation already on file. It follows that, contrary to what the appellant submitted, it is not the EPO which dissolves a contract between a party to the proceedings before the EPO and its representative. The appellant is therefore correct in saying that a party has the right to terminate the contract with its representative and that the termination of such contract is governed by the national law applicable and not by the EPC. Of course, the same must apply if the representative wishes to terminate his contract with his client. However, in view of Rule 152(8) EPC and the decision of the President, the responsibility for informing the EPO about the termination of the contract between a party and its representative before the EPO lies with the represented party, irrespective of whether or not it has its residence in an EPC contracting state, or with its representative. It is only when the EPO receives such information that, depending on the content of the information, it might have to determine on the basis of the documents filed whether a contract between a party to the proceedings before the EPO and its representative has indeed been terminated. The board emphasises that, just like the appointment of a representative vis-à-vis the EPO and the filing of an authorisation as prescribed by Rule 152(1) EPC and the decision of the President, the communication about the termination of an authorisation of a representative vis-à-vis the EPO is of fundamental importance for establishing whether the EPO is dealing with the entitled representative.

T 1846/11 - No authorisation

Key points

• In this case, a legal practitioner filed an appeal. Upon request by the Board, he filed an authorization from the applicant. The Board notes that the authorization was signed by the applicant after the request for the authorization. The Board then considers that " since the general authorisation is dated 8 April 2016, any procedural steps taken by [the legal practitioner Mr. K] as representative up to that date are not covered by that authorisation itself." The Board then considers that in the specific circumstances of the case, "the board would exceptionally have accepted that the appellant subsequently approve the procedural steps taken by Mr. K as representative in the present case in the period from 1 October 2010 to 8 April 2016." The Board issued an invitation, but no such approval was filed. Therefore, the appeal is deemed to be not filed, Rule 152(6) EPC applied " mutatis mutandis")
• The Board furthermore observes that the Decision of the President, generally exempting professional representative from the obligation to file authorizations, does not mean that professional not need to possess an individual or general authorisation verifying their entitlement to act for the party, which they must be able to produce if the EPO so requires.
• Some comments. As observed in T 1744/09, an invalid signature can hardly have more serious consequences than a missing one, i.e. an invitation under Rule 50(3) EPC to sign the Notice of appeal being issued.
• The approval requested by the Board could likely have been filed by the professional representative (an association was appointed throughout the procedure, the legal practitioner was apparently employed with that firm, but not covered by the authorization, Rule 152(11) EPC.
• It is not so clear why the authorization does not cover the acts before signing it. As held in T 1744/09, the legal practitioner only needs to be authorized by the affected party to act as his representative. "This will normally have been expressed by the issuance of a formal power of attorney (authorisation) to the representative, but such power need not even be put in writing. The entitlement to represent is based on the factual existence of such a power, whether verbal or written". Clearly, such a non-written authorization cannot be filed, if requested, so what Rule 152 requires is (in my analysis) simply an authorization, not an authorization signed before the first act of the authorized person in the case before the EPO
  
  Note 10.02.2021: see also T 0924/17 - the above holding does not apply to authorizations to be filed by professional representatives and appears to be restricted to authorizations to be filed  by legal practitioners.
  
  

EPO T 1846/11 -  link

Summary of Facts and Submissions

I. The present appeal lies from the decision of the examining division to refuse European patent application No. 04 012 578.3.

II. The Request for grant of a European patent (EPO Form 1001 07.02) was filed on 27 May 2004. On page 1 of the form, Rigaku Corporation was named as applicant and "Eric C. Emde et al, WAGNER & GEYER" were indicated as the representatives, but no authorisation was enclosed and no reference was made to a registered general authorisation. The Request for grant was signed by Mr Wagner, a professional representative of WAGNER & GEYER.

III. In the course of the proceedings before the examining division, Mr Klang of WAGNER & GEYER acted on behalf of the applicant for the first time when he filed a reply dated 19 November 2010 to the summons to oral proceedings.

Page 1 of the minutes of the oral proceedings of 17 March 2011 before the examining division (EPO Form 2009.1) includes the following statement:

"Present as/for the applicant/s: Alexander Hubertus Klang
The identity of the person/s present and, where necessary, the authorisation to represent/authority to act were checked."

IV. On 24 May 2011, notice of appeal against the refusal decision was filed by Mr Klang on behalf of the applicant (appellant). The appeal fee was paid on the same day. The statement setting out the grounds of appeal dated 27 July 2011 was also filed by Mr Klang.

V. First oral proceedings were held before the board on 22 January 2016.

At the beginning of the oral proceedings, the board informed Mr Klang, who was present on behalf of the appellant, that since he was a legal practitioner he had to file a signed authorisation or a reference to a general authorisation already on file according to the Decision of the President of the EPO on the filing of authorisations but that no authorisation was on file. Mr Klang was asked whether an authorisation had been filed in the present case or whether he could present an authorisation at these oral proceedings. He replied that he assumed that there was, as usual, an authorisation or a sub-authorisation in the file at the law firm and that he would immediately check this issue with his law firm.

T 1918/10 - Non-authorized representative

EPO T 1918/10

For the decision, click here 

Key point

• A sub-authorization to act during oral proceedings does not authorize to submit final written submissions. Which are deemed not filed in this case.
• Lots more of interesting aspects in the full decision.

Reasons for the Decision

1. The appeal is admissible.

2. Letters of the opponent dated 14 August 2014, 18 September 2014 and 24 September 2014

2.1 The validity of the opponent's representation was objected to by the patent proprietor, which raised doubts as to the extent of the representatives' entitlement to act. Therefore, the Board is empowered to deal with that issue (Spec. Ed. 3 OJ EPO 2007, L.1, Art. 1(3)).

2.2 The opposition in the name of the opponent was filed by Mr. [S] who is a registered European patent attorney of the law firm [X] Patentanwaltskanzlei which firm changed its name during the course of te proceedings to [Y] Patentanwälte.

According to the sub-authorisations dated 26 August 2014, Mr. [P] and Mr. [C], both registered European patent attorney of the law firm [F], were authorised by Mr. [S] to act for the opponent during the oral proceedings of 14 October 2014 (Board's emphasis). In that regard, the wording of the sub-authorisation leaves no doubt and can only be understood as being restricted to acting at the oral proceedings.

There is no evidence on file that Mr. [P] or Mr. [C] were authorised to perform any procedural act in the name of the opponent apart from representing them at the oral proceedings before the Board. The authorisations filed during the first oral proceedings before the Board are both post-dated (7 October 2014) and cannot serve to demonstrate that Mr. [P] and Mr. [C] were authorised to represent the opponent before that date.

Therefore, each of the letters dated 14 August 2014, 18 September 2014 and 24 September 2014 filed by Mr. [P] and Mr. [C] are deemed not have been filed (Rule 152(6) EPC).