T 1469/24 (Flow Control System) 06-11-2025

1. The appeal is admissible.

2. Submissions of the appellant

The appellant submits that according to decisions G 3/97 and G 4/97, although an opposition is not inadmissible purely because the person named as the opponent is acting on behalf of a third party, such an opposition may still not circumvent the law by abuse of due process.

In the present case, subsequent to the contested decision, the proprietor had initiated infringement proceedings before the UPC against a group of companies.

Mr. N.N. now acted as the representative of the German subsidiary of the group in a central revocation action against the contested patent at the UPC, initiated in reaction to the infringement proceedings.

Thus, one of the subsidiaries of the group of companies had instructed Mr. N.N. to file the opposition against the patent. He had therefore not been the real opponent, but had acted as a straw man for the group. In that manner, the real opponent avoided being identified as the party challenging the patent. This was a misuse of the opposition procedure, which was intended to allow genuine opponents to challenge patents in a transparent manner. Thus, the use of a straw man in this case was a clear attempt to circumvent the law by abuse of due process.

In addition, the straw man, being a patent attorney, did not have a legitimate interest in the outcome of the opposition proceedings.

For these reasons, the opponent had in fact not been correctly identified, so that the requirements of Article 99(1) and Rule 76(2) EPC were in fact not met and the opposition was inadmissible.

3. Main submissions of the respondent

The respondent submitted that even if the opposition was filed in a wrong name, this did not render the opposition inadmissible, since in decisions G 3/97 and G 4/97, it had been decided that in principle a "straw man" opposition was not inadmissible.

In addition, filing an opposition was a right every person had, except the proprietor, and in the present case, the opponent had not acted on behalf of the proprietor (i.e. the appellant).

4. Position of the board with respect to admissibility

4.1 For an opposition in which the person named as opponent is acting on behalf of a third party, decision G 3/97 identifies two cases where the law is circumvented by abuse of process, namely that the opponent is acting on behalf of the proprietor or 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 (headnote, points 1(b) and 1(c)). The first case does not apply as submitted by the respondent. The second case can not apply because Mr. N.N. possesses the qualifications required by Article 134 EPC, as also noted by the appellant.

4.2 The board is aware that these two cases do not constitute an exhaustive list. Nevertheless, decision G 3/97 comprises some further considerations, in particular considerations as to what is not considered a circumvention of the law by abuse of process.

4.3 For instance, in points 3.2.1 of the Reasons, it is set out that "Though the patent proprietor may have an economic interest in finding out who is trying to attack his patent, such an interest is not legally protected by the legislative arrangements for the opposition procedure". That is, even if in the present case a legal person like the group of companies involved in the infringement action actually had avoided to be identified as challenging the patent by having Mr. N.N. act on their behalf, this would not have constituted an attempt to circumvent the law by abuse of due process within the meaning of decision G 3/97.

4.4 Moreover, still according to point 3.2.1 of the Reasons of decision G 3/97, "the EPC legislator explicitly designed the opposition procedure as a legal remedy in the public interest which, according to Article 99(1) EPC, is open to "any person", as also pointed out by the respondent. The Enlarged Board further observed that "It would be incompatible with this to require that the opponent show an interest, of whatever kind, in invalidating the patent". In point 3.2.2 of the Reasons, finally, the Enlarged Board spells out that "therefore, it cannot be required that the opponent have an interest in the revocation of the patent". That is, in the present case, it is irrelevant whether Mr. N.N. had a genuine personal interest in the outcome of the opposition proceedings. Thus the "legitimate interest" of the opponent Mr. N.N., argued by the appellant to be missing, need not be demonstrated.

4.5 In summary, while G 3/97 and G 4/97 may not explicitly state that any opposition by a straw man is admissible, in the board's reading, they essentially conclude that opposition filed by a straw man on behalf of an anonymous party is not objectionable merely because the opponent is acting as a straw man. While the Enlarged Board maintains that abuse of process cannot be tolerated, it also holds that an abuse of process needs not be assumed in those cases where the third party instructing the presumed straw man ("the principal" in the following citation) could have filed an opposition itself (see Reasons 3.2.2, second paragraph: "... as long as the legal system has no objection to the filing of an opposition by the principal himself, no objection can be made to his inciting a straw man to file an opposition").

4.6 These two decisions also do not state that the opposition division would be required to investigate ex officio whether any of the identified situations that could be considered an abuse of due process might be present and concealed by the formally named opponent.

On the contrary, Headword 4 of G 4/97 holds that the burden of proof is borne by the person alleging that the opposition is inadmissible. From this it follows that in the present case the appellant patent proprietor must bring clear and convincing evidence that the law has been circumvented by abuse of process.

Presently the board does not see any such evidence in the file. The appellant also did not argue that the presumed principal of the opponent would have been barred from filing the opposition itself.

4.7 Thus, the reasons submitted by the appellant why the opposition is inadmissible are not convincing. Instead, the board holds that the requirements of Article 99(1) and Rule 76(2) EPC were met. Even if the opponent were acting as a straw man, this does not lead to the inadmissibility of the opposition.

5. Accordingly, the proprietor's appeal must be dismissed. The opponent's conditional request for a referral to the Enlarged Board of Appeal is moot.