1. Überblick

In T 412/24 the appellant (patent proprietor) had contested the admissibility of the (first) opposition relying on the following points concerning the (first) opponent: (i) the opponent's professional representative could not represent the company since he was simultaneously managing the legal entity he represented; (ii) the identity of the opponent could not be unequivocally determined; (iii) the opponent could not act as such because carrying out activities reserved to professional representatives without the necessary qualifications circumvented the principles of representation; and (iv) the opponent's change of name affected the admissibility of the opposition.

Concerning the representation, Mr N, the representative of the (first) opponent, a French company in the form initially of a société simplifiée unipersonnelle (SASU) then of a société à responsabilité limitée (SARL), was the president of the SASU and also a professional representative.

The board stated that – contrary to the proprietor’s allegations – Art. 133 and 134 EPC together with R. 152 EPC and the Decision of the President of the EPO of 12 July 2007 on the filing of authorisations (OJ SE 3/2007, 128) constituted a complete and self-contained set of rules on representation in proceedings established by the EPC. A legal person having its seat in an EPC contracting state is not obliged to be represented by a professional representative (Art. 133(1) EPC). Furthermore, persons whose names appear on the list of professional representatives are entitled to act in all proceedings established by the EPC (Art. 134 EPC). A legal person having its seat in an EPC contracting state can act in proceedings before the EPO through its legal representatives. At the time the opposition was filed, Mr N in his capacity as president of the SASU was entitled to represent the SASU since under French law (Art. L. 227 Commercial Code) he was entitled to act on behalf of the legal person in all circumstances. As a professional representative, Mr N would have been entitled to act not only as the president of the SASU, but also as a professional representative appointed by that legal person.

For the sake of completeness, the board explained why neither the references to French and German law, nor the reference to general principles under Art. 125 EPC could lead to the conclusion that the company was prevented from appointing Mr N as its professional representative before the EPO. At the oral proceedings before the board, the appellant referred to the order of UPC_CoA_563/2024. The board noted that the conclusion in that case rested on the specific provisions of the UPCA, in particular Art. 48(1) UPCA (mirroring Art. 19 of the Statute of the CJEU) and R. 8(1) UPCA, which require that both natural and legal persons be represented. The CJEU had identified as one of the objectives of mandatory representation in CJEU proceedings ensuring that the representative of a legal person is sufficiently distant from the party represented (C-515/17 P and C-561/17 P). According to the board, however, even if this were regarded as a general principle of the EPC contracting states, it could not be transposed to the EPC framework. Principles of procedural law under Art. 125 EPC may be invoked to fill gaps, but not to modify the EPC framework. Introducing a corollary of the prohibition of self-representation into a system that expressly allows it would however amount to such a modification.

On the identity of the opponent, the board held that the opposition was clearly filed on behalf of SARL Cabinet NÜ. The only uncertainty, based on the submissions of the proprietor itself, concerned whether Mr N was representing the opponent as a European patent attorney or in his capacity as the president of that company. Nonetheless, this alleged ambiguity could not raise any doubt about the identity of the opponent. As regards the change of the opponent’s name, the board observed that there had been no change of the identity of the opponent.

The alleged circumvention of the law was also rejected. The board noted that this would occur if a person not entitled to act as a professional representative performed all the activities typically carried out by professional representatives while assuming the role of a party, in order to circumvent the prohibition on unqualified representation, but Mr N was a qualified professional representative.

In line with T 1893/22, which related to the earlier application, the board concluded that the (first) opposition was admissible. The appeal was dismissed.