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Case Law of the Boards of Appeal

 
 
3.6. Interruption of proceedings because of insolvency (Rule 142(1)(b) EPC)

According to R. 142(1)(b) EPC (R. 90(1)(b) EPC 1973) proceedings before the EPO shall be interrupted in the event of the applicant for a European patent, as a result of some action taken against his property, being prevented by legal reasons from continuing the proceedings before the EPO. For a case in which an opponent requested interruption of proceedings because of insolvency, see T 1533/07.

The decisive criterion for interruption under R. 142(1)(b) EPC is whether the action against the property was such as to make it legally impossible for the applicant to continue with the proceedings (J 26/95).

In J 9/90 the Legal Board held that for R. 90(1)(b) EPC 1973 to be applied in the light of Art. 60(3) EPC 1973 and R. 20(3) EPC 1973, the applicant entered in the Register of European Patents and the insolvent person (here a limited company) had to be legally identical.

In the cases J 9/94 and J 10/94, it was regarded as being analogous to a case of legal impossibility where the applicant, as a consequence of an action against his property, did not have at his disposal any remaining property by means of which he could have effected the required payment and he was thus, as a result of the action against his property, placed in a situation where it was factually and legally impossible for him to continue the proceedings before the EPO. In such a case it had, however, to be examined whether the actions taken effectively made it impossible for the applicant to continue the proceedings (see J 26/95).

In J 26/95 (OJ 1999, 668) the board held that, in the absence of specific circumstances, proceedings against the applicant under Chapter 11 of the US Bankruptcy Code did not interrupt proceedings before the EPO within the meaning of R. 90(1)(b) EPC 1973 (R. 142(1)(b) EPC) (see also J 11/98). Being placed under Chapter 11 of the US Bankruptcy Code was an action taken against the property of the debtor. It did not, however, constitute a case where, as a result of such action, it was impossible for the debtor to continue the proceedings before the EPO. On the contrary, it was the very nature of proceedings under Chapter 11 that it was the debtor who continued to act for his business. Chapter 11 bankruptcy proceedings were therefore not comparable to the cases which had been recognised in the case law of the boards of appeal as leading to interruption of proceedings, i.e. where parties had been placed under receivership under French law (J 7/83, OJ 1984, 211) or been declared bankrupt under German law (J 9/90). A situation which could be compared to the exceptional case underlying decisions J 9/94 and J 10/94 (see above) had also not been substantiated.