4. Bevollmächtigung eines Vertreters

In T 1262/22, the respondents (patent proprietors) alleged that the appeal was inadmissible because the notice of appeal was filed by a professional representative (K) who was not authorised at the time of filing.

Under Art. 1(1) of the Decision of the President of the EPO dated 12 July 2007 on the filing of authorisations, in the version as applicable at the time the notice of appeal in question was filed, a professional representative was required to file a signed authorisation only in the circumstances set out in Art. 1(2) and (3) of said decision. This was the case if a change of professional representatives had occurred without the EPO being notified that the previous representative's authorisation has ended.

In the case in hand, while representation during the opposition proceedings had been undertaken by professional representative B, the notice of appeal was signed by new professional representative K. Since B had not informed the EPO of the termination of its authorisation, it was still deemed authorised before the EPO, as provided for by R. 152(8) EPC. Hence, the board found there was nothing unusual in the fact that the EPO continued to communicate with B, nor could it be concluded on this basis that K was not authorised, as submitted by the respondents. From the legal framework, pursuant to R. 152(1) EPC and the said Decision of the President of 2007, the new representative K had to file an authorisation granted by the opponent/appellant; it did so of its own motion on 5 April 2022, the authorisation having been granted by the opponent on 25 March 2022..

In accordance with R. 152(2) EPC, filing the authorisation on 5 April 2022 remedied the deficiency concerning the representation of the opponent/appellant before the relevant period for filing an appeal under Art. 108 EPC expired, i.e. 12 April 2022. Therefore, the consequence indicated in R. 152(6) EPC, according to which if the required authorisation is not filed in due time any procedural step taken by the representative is deemed not to have been taken, did not materialise. The notice of appeal was thus validly filed.

This conclusion was not affected by the fact that at the time the notice of appeal was filed, B was also acting as the professional representative for this case, since the system of representation before the EPO permits representation by several representatives, as long as the applicable rules mentioned are respected. Nor was this conclusion affected by the fact that K's authorisation bore a signature which was dated 25 March 2022, i.e. after the filing of the notice of appeal. Contrary to the respondents' submissions, the EPC does not express a requirement that the authorisation be signed before the filing of the notice of appeal; this would even be inconsistent with R. 152(2) EPC, which allows for a deficiency to be remedied. An authorisation is an internal legal relationship between the representative and the party. Accordingly, the question of whether an authorisation was in existence at the time the notice of appeal was filed is irrelevant for the EPO, as long as any deficiency concerning the party's representation is remedied within the time limit under Art. 108 EPC.

The respondents further submitted that the EPO's letter dated 11 April 2022, with which K was asked to confirm whether they intended to take over representation of the opponent, showed that there were doubts about the effectiveness of the authorisation filed on 5 April 2022. The respondents concluded that K did not actually take over representation until the reply of 3 May 2022, meaning that they clearly were not authorised when filing the notice of appeal. The board did not agree. The EPO's letter was aimed merely at clarifying if B was still a representative in addition to K, or whether K had taken over as the sole representative. K’s reply of 3 May 2022 could also not be understood as an actual taking over of representation for the first time. Such a conclusion would disregard the fact that K had already filed an authorisation granted by the opponent/appellant on 5 April 2022. Nothing more was actually required.

According to the board, the decisions cited by the respondents were not applicable.

The notice of appeal was therefore validly filed.