G 0004/97 (Opposition on behalf of a third party/GENENTECH) vom 21.01.1999

Europäischer Rechtsprechungsidentifikator

ECLI:EP:BA:1999:G000497.19990121

Datum der Entscheidung

21. Januar 1999

Aktenzeichen

G 0004/97

Antrag auf Überprüfung von

T 0649/92 1996-07-02

Anmeldenummer

82304478.9

IPC-Klasse

C12N 15/00

Verfahrenssprache

Englisch

Verteilung

Im Amtsblatt des EPA veröffentlicht (A)

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Bezeichnung der Anmeldung

Construction of DNA sequences and their use for microbial production of proteins, in particular human serum albumin

Name des Antragstellers

Genentech, Inc.

Name des Einsprechenden

Delta Biotechnology Limited
Riatal GmbH
Naohito Oohashi

Kammer

Leitsatz

1(a): An opposition is not inadmissible purely because the person named as opponent according to Rule 55(a) EPC is acting on behalf of a third party.

1(b): Such an opposition is, however, inadmissible if the involvement of the opponent is to be regarded as circumventing the law by abuse of process.

1(c): Such a circumvention of the law arises, in particular, if:

- the opponent is acting on behalf of the patent proprietor;

- the opponent is acting on behalf of a client in the context of activities which, taken as a whole, are typically associated with professional representatives, without possessing the relevant qualifications required by Article 134 EPC.

1(d): However, a circumvention of the law by abuse of process does not arise purely because:

- a professional representative is acting in his own name on behalf of a client;

- an opponent with either a residence or principal place of business in one of the EPC contracting states is acting on behalf of a third party who does not meet this requirement.

2: In determining whether the law has been circumvented by abuse of process, the principle of the free evaluation of evidence is to be applied. The burden of proof is to be borne by the person alleging that the opposition is inadmissible. The deciding body has to be satisfied on the basis of clear and convincing evidence that the law has been circumvented by abuse of process.

3: The admissibility of an opposition on grounds relating to the identity of an opponent may be challenged during the course of the appeal, even if no such challenge had been raised before the opposition division.

Relevante Rechtsnormen

European Patent Convention Art 99 1973 European Patent Convention R 55 1973

Schlagwörter

Admissibility of opposition - acting on behalf of a third party
Circumvention of the law by abuse of process

Orientierungssatz

Zitierte Akten

G 0001/84 G 0009/93 T 0010/82 T 0635/88 T 0290/90 T 0798/93 T 0301/95

Zitierende Akten

G 0001/97 G 0003/99 G 0001/12 G 0002/21 T 0649/92 T 0303/94 T 0272/95 T 0459/96 T 0461/96 T 1028/96 T 0188/97 T 1204/97 T 0866/01 T 1284/01 T 0030/02 T 0315/03 T 1178/04 T 1895/06 T 0261/08 T 0839/08 T 0001/12 T 2016/12 T 0335/13 T 2256/14 T 0384/15 T 1924/15 T 0007/17 T 0882/17 T 1839/18 T 0084/19 T 0953/21 T 1731/21 T 1808/21 T 2095/21 T 1403/24 T 1469/24

ORDER

For these reasons it is decided that:

The questions of law referred to the Enlarged Board of Appeal are to be answered as follows:

1. and 2: The admissibility of an opposition on grounds relating to the identity of an opponent may be challenged during the course of the appeal, even if no such challenge had been raised before the opposition division.

3(a): An opposition is not inadmissible purely because the person named as opponent according to Rule 55(a) EPC is acting on behalf of a third party.

3(b): Such an opposition is, however, inadmissible if the involvement of the opponent is to be regarded as circumventing the law by abuse of process.

3(c): Such a circumvention of the law arises, in particular, if:

- the opponent is acting on behalf of the patent proprietor;

3(d): However, a circumvention of the law by abuse of process does not arise purely because:

- a professional representative is acting in his own name on behalf of a client;

- an opponent with either a residence or principal place of business in one of the EPC contracting states is acting on behalf of a third party who does not meet this requirement.

4: In determining whether the law has been circumvented by abuse of process, the principle of the free evaluation of evidence is to be applied. The burden of proof is to be borne by the person alleging that the opposition is inadmissible. The deciding body has to be satisfied on the basis of clear and convincing evidence that the law has been circumvented by abuse of process.

5: This decision is to be applied to all pending proceedings.