Communication from the Enlarged Board of Appeal concerning case G 1/13

In accordance with Article 112(1)(a) EPC, Technical Board of Appeal 3.3.07 referred the following points of law to the Enlarged Board of Appeal with interlocutory decision of 21 June 2013 in case T 22/09:

1. Where an opposition is filed by a company which is dissolved before the Opposition Division issues a decision maintaining the opposed patent in amended form, but that company is subsequently restored to the register of companies under a provision of the national law governing the company, by virtue of which the company is deemed to have continued in existence as if it had not been dissolved, must the European Patent Office recognise the retroactive effect of that provision of national law and allow the opposition proceedings to be continued by the restored company?

2. Where an appeal is filed in the name of the dissolved company against the decision maintaining the patent in amended form, and the restoration of the company to the register of companies, with retroactive effect as described in question 1, takes place after the filing of the appeal and after the expiry of the time limit for filing the appeal under Article 108 EPC, must the Board of Appeal treat the appeal as admissible?

3. If either of questions 1 and 2 is answered in the negative, does that mean that the decision of the Opposition Division maintaining the opposed patent in amended form automatically ceases to have effect, with the result that the patent is to be maintained as granted?

The text of the referral in the English language is available on the EPO website under
http://documents.epo.org/projects/babylon/eponet.nsf/0/1761137AC06D38CAC1257BA2004723FC/$File/ReferralT0022-09.pdf.

The Enlarged Board of Appeal considering the referral will be composed as follows: W. van der Eijk (Chairman), K. Garnett, B. Günzel, A. Klein, R. Murphy, U. Oswald, G. Weiss.

Third parties are hereby given the opportunity to file written statements in accordance with Article 10 of the Rules of Procedure of the Enlarged Board of Appeal (OJ EPO 2007, 303 ff) in one of the official languages of the EPO (English, French or German).

To ensure that any such statements can be given due consideration they should be filed by the end of December 2013 with the Registry of the Enlarged Board of Appeal, quoting case number G 1/13.

Each statement should also be accompanied by a list of cited documents and copies on paper or preferably on CD/DVD of any such documents not previously filed.

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