2.2.2 Universal succession

In T 349/86 of 29 April 1988 (OJ 1988, 345) the board referred to R. 60(2) EPC 1973, which stated that in the event of the death of the opponent the opposition proceedings could be continued by the EPO of its own motion, even without the participation of the heirs. According to the board this may be read as definitely stating that an opposition may be transferred to a deceased opponent's heirs and, by analogy, to a company absorbing the opposing company by merger or takeover (see also T 1091/92, OJ 2005,14). In G 4/88 the Enlarged Board confirmed that the opposition may be transferred to the opponent's universal successor in law (point 4 of the Reasons). In T 475/88, the board held that the appeal filed in the name of Hoechst AG was admissible, as opponent status had been transferred to that company on its merger with Ruhrchemie AG.

The situation was different in T 659/92 (OJ 1995, 519), as there had been no universal succession. There was nothing to indicate that the opponent's business assets had been contractually transferred. The board concluded that a unilateral declaration by the owner of rights that he had transferred industrial property rights and opponent status in proceedings relating to a particular right could not of itself effect universal succession by transfer of business assets.

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