4.3. Concept of legal incapacity (Rule 142(1)(a) EPC and Rule 142(1)(c) EPC)

The EPC does not define the concept of "legal incapacity", which is assessed differently according to whether the person concerned is the applicant or patentee or a professional representative: In J 900/85 (OJ 1985, 159) and J 903/87 (OJ 1988, 177) the Legal Board held that the capacity of the applicant or patent proprietor to carry out legal transactions relating to his application or patent must be determined in accordance with the relevant national law because the interest in the patent application or the patent is an interest in property (see Art. 74 and 2(2) EPC; see also J 49/92). On the other hand, J 900/85 (OJ 1985, 159) states that a uniform standard of judging legal incapacity of representatives shall apply in order to avoid differences in the application of R. 90(1)(c) EPC 1973 (R. 142(1)(c) EPC) depending on the nationality of domicile of the representative.

The Legal Board in J 2/22 observed that the legal incapacity of a person meant that they were suffering from a disturbance of their mind which made them unable to form the necessary voluntary intention to carry out legal transactions binding upon them, and that in the context of the procedural system of the EPC, which does not distinguish between civil and procedural legal capacity, this also meant that they could not act on their own in proceedings before the EPO. The Legal Board analysed the jurisprudence on the concept of legal incapacity at length and concluded that within the legal system established by the EPO, there had to be a standard to be set and applied by the EPO. It referred to G 1/22 and G 2/22, which, albeit in a different context, reaffirmed the general approach of applying the autonomous law of the EPC, being inspired and supplemented by the national laws of the EPC contracting states, to arrive at uniform standards for all parties before the EPO. In particular, the Legal Board held that the standards for assessing legal capacity regarding natural persons should be the same as those regarding professional representatives, as only unified standards according to the autonomous law of the EPC could guarantee equal treatment of the parties, as an essential element of fair trial.