J 0901/86 (Professional representative/Legal incapacity) of 04.11.1986

1. Legal incapacity of the professional representative under Rule 102(2)(a) EPC, as with Rule 90(1)(c), is incapacity to carry out professional work before the EPO, and must be of a persistent nature.

2. A reasonable basis for decisions on the matter by the EPO is the test: is the representative concerned in a fit mental state to do the work required of him or does he suffer from a persistent incapacity to make rational decisions and to take necessary actions?

3. The Legal Division is competent to decide on such incapacity and delete the representative concerned. However, it must base its decision on convincing evidence of persistent incapacity, obtaining additional evidence if that supplied is not conclusive.

4. A professional representative thought likely to be incapable of representing clients before the EPO must be thought equally likely to be incapable of defending his own interests and thus to present his comments on the grounds for any deletion proceedings. A decision deleting him for incapacity from the list of professional representatives which is taken without his having been assisted in the proceedings by an ad hoc guardian is thus in breach of Article 113(1) EPC.