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Case Law of the Boards of Appeal

 
 
1.3. Professional representatives during the transitional period

One of the conditions for including a professional representative on the EPO list is that he has passed the European qualifying examination (EQE). During a transitional period after the EPC 1973 first entered into force, this requirement could be waived under the conditions laid down in Art. 163 EPC 1973 (see J 19/89, OJ 1991, 425; J 10/81). For all states acceding to the EPC 1973 at its inception, this period ended on 7.10.1981 (decision of the Administrative Council dated 6.7.1978, OJ 1978, 327). Art. 163 EPC 1973 was one of the transitional provisions, now superseded, and has therefore been deleted in the new EPC 2000.

After the above date, under Art. 163(6) EPC 1973, a person with his place of business or employment in a state newly acceding to the EPC 1973 may, during a period of one year as from that state's accession, be added to the list under the conditions laid down in Art. 163(1) to (5) EPC 1973, i.e. without having to pass the EQE. Art. 163(6) EPC 1973 retains all its significance as a grandfather clause and is therefore preserved in the EPC 2000 to deal with the situation of national representatives of states acceding to the EPC in the future. The substance of the grandfather clause of Art. 163 EPC 1973 has therefore been integrated in Art. 134(3) EPC 2000 in simplified form, as a permanent provision of the EPC.

The reunification of Germany posed its own problems, in J 18/92, J 30/92, J 31/92, J 32/92 and J 33/92, regarding the admission of professional representatives. The appellants argued that the provisions of Art. 163(6) EPC 1973 should be applied to patent attorneys, even where they had qualified in West Germany and not the former GDR. In the board's view, Art. 163(6) EPC 1973 could only be applied by analogy to those finding themselves in a similar situation to the patent agents of a country acceding to the EPC. This requirement was fulfilled only by patent agents from the former GDR and not by their colleagues who had already been admitted in the West. The board held that it would be strange if those who were admitted as patent agents in a contracting state were able to become authorised representatives without having to pass the examination merely by way of analogy with people working in a country which had just become a member. The appeals were accordingly dismissed.