3.3.2 Common representative

In G 3/99 (OJ 2002, 347) the Enlarged Board dealt with the question of the admissibility of joint oppositions and joint appeals. The decision makes it clear that an opposition filed in common, apart from the fact that it is filed by more than one person, is as much a single opposition as an opposition filed by only one person. In an opposition filed in common, there must in all cases be a common representative (Art. 133(4) and R. 100 EPC 1973) (R. 151 EPC), and only that common representative is entitled to act in the opposition proceedings on behalf of all the common opponents taken as a whole.

If the opposing party consists of a plurality of persons, an appeal must be filed by the common representative under R. 100 EPC 1973. Where the appeal is filed by a non-entitled person, the Board of Appeal shall consider it not to be duly signed and consequently invite the common representative to sign it within a given time limit. The non-entitled person who filed the appeal shall be informed of this invitation. If the previous common representative is no longer participating in the proceedings, a new common representative shall be determined pursuant to R. 100 EPC 1973.

In order to safeguard the rights of the patent proprietor and in the interests of procedural efficiency, it has to be clear throughout the procedure who belongs to the group of common opponents or common appellants. If either a common opponent or appellant (including the common representative) intends to withdraw from the proceedings, the EPO shall be notified accordingly by the common representative or by a new common representative determined under R. 100(1) EPC 1973 in order for the withdrawal to take effect.

G 3/99 was applied in T 1154/06 in connection with the necessity of appointing a professional representative if the first-named of multiple patent proprietors was not resident in a contracting state. (See R 18/09, in which the Enlarged Board referred to these two decisions and held that both the principle that a plurality of persons acting in common must be treated as a single party (a "group party") and the requirement that such a group party acts through a common representative apply to petition proceedings.)

In T 1654/13 it was submitted that the appeal filed by the common representative of the joint patent proprietors had to be understood as having been filed on behalf of both patent proprietors as joint appellants. The wording used in the notice of appeal, referring only to the first of the two patent proprietors, i.e. Unilever N.V., thus had to be understood only in relation to the request for the reduction of the appeal fee. The board, citing Art. 118 EPC and calling to mind R 18/09 and T 1154/06, decided that there was no doubt that Unilever N.V. and Unilever PLC were joint appellants. The appeal was admissible.

In decision T 1366/04 the appeal had been filed by the first of two joint patent proprietors only. The board held that the requirements of Art. 118 EPC were met and that there was no doubt about the identity and appellant status of the two patent proprietors.

Decision T 418/07 concerns a different case, where shortly before the oral proceedings the respondent (patent proprietor) appointed a second firm of representatives as joint representatives in addition to the firm already acting and asked the board to send copies of all correspondence to both firms. In this case of multiple representatives, the board held that while it is open to a party to appoint as many representatives as it may wish, the board is not aware of any requirement on it or on other parties to send correspondence to more than one representative of one party. If a party wants to retain multiple representatives, it must make its own arrangements for copying correspondence to them all. Parties cannot expect the board to provide copying services for their convenience.

In T 1907/20 the appellant (patent proprietor) argued in support of its appeal's admissibility that, as professional representative acting for the two joint patent proprietors (Bosch und Samsung) under R. 151(1) EPC, the representative who had filed and signed its notice of appeal ("representative on appeal") had been entitled to do so even without a special authorisation. His acting in addition to the representative who had filed the patent application was covered by R. 152(10) EPC. The board agreed that the representative on appeal had already been entitled at the time of filing the appeal to act as the joint proprietors' common representative under R. 151(1) EPC, even without meeting any further formal requirements, because he personally had performed this act as professional representative. The appointment of another common representative was likewise no obstacle to acknowledging the representative on appeal as yet another common representative of the proprietors within the meaning of R. 152(10) EPC. It was not necessary to provide the EPO with any special declaration. The opponent had also not disputed that, as professional representative under Art. 134 EPC, the representative on appeal did not need to produce an authorisation from Samsung within the meaning of Art. 1 of the President's decision dated 12 July 2007 on the filing of authorisations. Moreover, the EPO had no grounds for considering that there had been a change of representative. Both the representative previously dealing with the application and the representative on appeal were just two of several representatives acting for Bosch under R. 152(10) EPC. At the oral proceedings before the board, the respondent argued that the representative on appeal's lack of authority to act did not result from a missing authorisation but instead from the fact that there had been no appointment of a common representative as expressly envisaged in R. 151 EPC. The board, however, held that R. 151 EPC did not require that the representative be appointed in the form of a special declaration by the applicant or proprietor in addition to the authorisation issued for the purposes of R. 152 EPC. Hiring a professional representative or issuing a professional representative with an authorisation (and, as the case may be, subsequently filing that authorisation with the EPO for the purposes of grant or opposition proceedings) was deemed to be an appointment of a common representative within the meaning of R. 151 EPC.

See also J 35/92 (common professional representative appointed; application withdrawn) and J 10/96 (appointed common professional representative withdrew from case during the proceedings), T 464/20 (board applied R. 151(1) EPC in a case where opposition had been filed jointly by two companies in which a letter from the representative had stated that the second one was in liquidation but no supporting evidence was produced).