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 0858/18 - Fax pages after midnight

Key points

• The Board decides that an opposition is inadmissible because the last few pages were received after midnight of the last day of the opposition period. The Board explains that the possibility to renounce the last pages and keep the previous date (Article 5(2) DPFF (decision on fax filings)) does not apply to subsequent documents.  " The clear wording and structure of the DPFF does not leave any room for an analogous application of Article 5(2) DPFF to other documents as regards their date of receipt. " 
• In the case at issue, three pages were received after midnight: the last page of the " Statement of Facts and Arguments" and EPO Form 1038.
• The Board considers the Statement of Facts and Arguments to be " a single document" . " The transmission of this document [...] extended beyond midnight, the information recorded on the last page reaching the EPO only after midnight." The Board then has to decide on which date this document was received. 
• The Board concludes that " if the facsimile transmission of a document extends beyond midnight, the date on which such a document is received within the meaning of Article 5(3) DPFF is the later of the two consecutive dates." 
• " The Board concedes that a delay of only a few minutes is minimal and the consequence can be harsh, as the present case clearly illustrates. But such a consequence is inherent whenever time limits have to be respected. " 
• The counter-intuitive result is that the opponent would likely have been better of if he had not submitted the last three pages at all, because a missing signature page can be repaired (see e.g. T0382/16).

EPO T 0858/18 -  link



EPO Headnote
If a facsimile transmission of a document within the meaning of Rule 50(3) EPC begins on an earlier date and extends beyond midnight to a later date, the entire document is accorded the later date as single date of receipt. There is no legal basis for according the earlier date as date of receipt to the part of the document arriving at the EPO before midnight (see in particular point 6 and for the term "document" point 4 and for the "date of receipt" point 5 of the reasons).
Deviating from decisions T 2061/12 and T 2317/13 (see points 7.3 and 7.4 of the reasons).

Summary of Facts and Submissions

I. This appeal by the patent proprietor (in the following: appellant) lies from the decision of the Opposition Division revoking European patent No. 2 392 194 pursuant to Article 101(3)(b) EPC.

II. Mention of the grant of the opposed patent was published in the Bulletin on 18 March 2015.

III. The opponent (in the following: respondent) filed a notice of opposition against this patent by facsimile including 19 pages. The facsimile transmission started on 18 December 2015 at 23:53:42 and ended on 19 December 2015 on 00:01:14. The facsimile contained, in this order:

(a) Form 2300 "Notice of opposition to a European patent" (pages 1 to 4, which reached the EPO on 18 December 2015),

(b) Form 1010 "Payment of fees and expenses" (page 5, which reached the EPO on 18 December 2015), and a

(c) "Statement of Facts and Arguments concerning EP 2 392 194 B1" (pages 6 to 17, of which pages 6 to 16 reached the EPO on 18 December 2015 whereas page 17 reached the EPO on 19 December 2015), and

(d) Form 1038 (pages 18 to 19, which reached the EPO on 19 December 2015).

IV. The Opposition Division held the opposition to be admissible following the reasoning of decision T 2061/12, according to which the earlier date of receipt could be attributed to the part of a document filed by facsimile arriving before midnight. All elements required for an admissible opposition were therefore deemed to have been received before the lapse of the opposition period.

Reasons for the Decision

1. The appeal is admissible.

2. Lapse of the opposition period

T 0382/16 - Last page missing

Key points

• In this opposition appeal, "the patent proprietor (respondent) submitted with their rejoinder (letter of 23 August 2016) comparative tests dated 15 [May] 2014 which will be referred to as D11." 
• The appellant objects that the letter of 23.08.2016 had not been signed.
•  "The respondent replied with a letter of 12 March 2019 indicating that the last page of the rejoinder of 23 August 2016 (page 5) bearing the signature of the representative had not been transmitted. Accordingly, the whole rejoinder including the missing page 5 with a signature of the representative was submitted with said letter of 12 March 2019." 
• The Board: " in analogy to the provisions of Rule 50(3) EPC, it was considered that the submissions made by the respondent with letter of 23 August 2016, i.e. pages 1 to 4 and experimental report D11, shall retain their original date of receipt. "
• Note that Rule 50(3) EPC supposes that the EPO " shall invite the party concerned to do so within a time limit to be specified." This decision clarifies that the signature can also be provided prior to such an invitation.

EPO T 0382/16 -  link


Summary of Facts and Submissions

VI. The patent proprietor (respondent) submitted with their rejoinder (letter of 23 August 2016) comparative tests dated 15 [May] 2014 which will be referred to as D11.

VII. The appellant submitted with a letter of 5 March 2019 that the rejoinder of the respondent had not been signed by a person authorized to represent the respondent. It was argued that a remedy to this deficiency would presuppose the existence of a communication under Rule 50(3) EPC which had not been issued.

VIII. The respondent replied with a letter of 12 March 2019 indicating that the last page of the rejoinder of 23 August 2016 (page 5) bearing the signature of the representative had not been transmitted. Accordingly, the whole rejoinder including the missing page 5 with a signature of the representative was submitted with said letter of 12 March 2019.

IX. In the communication of the Board of 8 April 2019 sent in preparation for the oral proceedings, the Board indicated that having regard to respondent's letter of 12 March 2019 and in analogy to the provisions of Rule 50(3) EPC, it was considered that the submissions made by the respondent with letter of 23 August 2016, i.e. pages 1 to 4 and experimental report D11, shall retain their original date of receipt.

[...]

Reasons for the Decision

1. The indication by the Board in its communication of 8 April 2019 that the submissions made by the respondent with letter of 23 August 2016, i.e. pages 1 to 4 and experimental report D11, shall retain their original date of receipt (see above point IX of the Summary of Facts and Submissions) was not disputed by the appellant. The submissions made by the respondent with letter of 23 August 2016 are therefore deemed to have been made within four months of notification of the grounds of appeal and are to be taken into account in the appeal proceedings (Rule 12(1)(b) and (4) RPBA).