2.1.4 Repeated filing of an opposition by the same person

In T 9/00 (OJ 2002, 275), the board pointed out that repeated filing of an opposition by the same person could be objected to for lack of legitimate interest. It ruled that a (legal) person who filed two different notices of opposition to the same granted patent acquired party status as opponent only once, even if both notices complied with the requirements of Art. 99(1) EPC and R. 76 EPC (former R. 55 EPC 1973). Both oppositions gave lack of novelty and inventive step as the grounds of opposition. Since the later opposition did not entail any change in the legal situation in the opposition proceedings compared to the earlier one, the board dismissed it as inadmissible for lack of a general legitimate interest. Nor could such an interest be inferred from the fact that the later opposition was assigned to a different part of the company from the earlier opposition and only that part of the company had been transferred to a third party. If, as in the present case, the subject of an opposition is assigned to two different parts of the opponent's company, the status of opponent can pass to a third party only if both parts or the entire company are transferred to it.

Different were the circumstances in T 774/05, in which the only indication of separate oppositions was that the filed documents each stated that they were an opposition. Here, the board found that the filing requirements could only have been met for one opposition and that the opponent had intended to maintain a single opposition, as was shown by the faxed statement that the cheque for the opposition fee was to be used for the opposition. The opposition was therefore held to be admissible.

In T 966/02, the same opponent had filed two oppositions the second of which cited document D1 on which the opposition division based its decision. The main issue in this case was less about whether the second opposition was admissible or not, but rather whether the opposition division had been competent to use the document cited in the second opposition. The board stated that, irrespective of whether or not the second opposition filed had to be regarded as admissible, the first opposition had been filed in due form and time and was therefore admissible. Hence there was no need to decide whether the second opposition was admissible, since the department of first instance was, in any event, competent to take account of both document D1 and any other relevant material of its own motion (Art. 114 (1) EPC).

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