J 0002/22 vom 19.07.2024

1. The notification of a communication or decision on a person who does not possess legal capacity and who is not properly represented is null and void, as are procedural acts involving or performed by such person.
2. Legal incapacity of a person means that they are suffering from a disturbance of their mind which makes them unable to act on their own in proceedings before the EPO. Legal (in-)capacity is to be assessed ex officio, and it requires a reliable medical opinion.
3. There is a general presumption in favour of legal capacity of a natural person appearing as party or representative before the EPO, but this presumption no longer holds if there are indications to the contrary, in particular from this person's conduct in the proceedings.
4. The standards of assessing legal capacity regarding natural persons are the same as those regarding professional representatives, as only unified standards according to the autonomous law of the EPC can guarantee equal treatment of the parties.
5. Proceedings before the EPO are to be interrupted in the event of legal incapacity of an applicant or proprietor, and are to be resumed with the person authorised to continue.
6. From the mere fact that the Legal Division is responsible for entries in the European Patent Register, with the dates of interruption or resumption of proceedings being among the entries to be made in the register, it cannot be derived that the Legal Division would also be responsible for the decision to interrupt themselves.
7. The allocation of tasks among the first-instance departments of the EPO by a decision of the President of the EPO presupposes the competence of the first instance, and cannot in itself establish a continuing competence of the Legal Division with regard to interruption during appeal proceedings, where the boards have exclusive competence.
8. When the first-instance proceedings are declared null and void by the board, they are to be resumed and continued with a representative to appoint, and with further notifications to make on that representative.
9. The concept of the appointment of a representative for legal proceedings is inherent in the system of the EPC, and can, as a matter of principle, be applied to any case where a representative is essential to guarantee the participation of a legally incapable person as party and thus a fair trial.