2.1. Entitlement to file an opposition
2.1.6 Repeated filing of opposition documents by the same person
According to T 9/00 (OJ 2002, 275), the repeated filing of an opposition by the same person could be objected to for lack of legitimate interest. A (legal) person who filed two different notices of opposition against the same patent acquired party status as an opponent only once, even if both notices complied with the requirements of Art. 99(1) EPC and R. 55 EPC 1973 (R. 76 EPC). Both oppositions in question gave lack of novelty and lack of inventive step as grounds. Since the later opposition did not entail any change in the legal situation in the opposition proceedings compared to the earlier one, the board dismissed it as inadmissible for lack of a general legitimate interest. Nor could such an interest be inferred from the fact that the later opposition was assigned to a different part of the company and only that part of the company had been transferred to a third party. The status of opponent could pass to a third party only if both parts or the entire company were transferred to it.
In T 774/05 a notice of opposition was filed on one day, enclosing a cheque for the opposition fee but no reasoned statement. On the following day further documents were filed which included patent documents and a reasoned statement referring to a notice of opposition. The board found the opponent had intended to maintain a single opposition, as evidenced by the statement in the faxes that the cheque for the opposition fee presented the day before should be used for the opposition. That both the document filed initially and the faxes of the following day each stated that they were an opposition was not an indication, of an intention to file two oppositions but rather an indication of their content. Taking all these documents together, the board considered that the opponent had filed only one opposition, for which the requirements for a valid filing had been completed within the opposition period. The opposition was therefore admissible.
In T 966/02, the same opponent had filed two oppositions, the second of which cited document D1, on which the opposition division based its decision. The main issue was whether the opposition division had been competent to use the document cited in the second opposition. The board stated that the first opposition had been filed in due form and time and was therefore admissible. Hence there was no need to decide whether the second opposition was admissible, since the department of first instance was, in any event, competent to take account of both document D1 and any other relevant material of its own motion (Art. 114 (1) EPC).
- T 1403/24
In T 1403/24 the appellant (patent proprietor) contested the admissibility of the opposition filed by opponent 2. It argued that opponent 2 was acting on behalf of opponent 1 or opponent 3. In the appellant’s view, this followed from the citation of document D24 in the notice of opposition by opponent 2, because D24 concerned the non-public infringement complaint by the patent proprietor against opponent 1 and opponent 3 in Germany. Moreover, opponent 2 had previously represented a member of the same company group to which opponent 1 belonged in the opposition against the parent patent. Furthermore, the notices of opposition filed on the same day by opponent 2 and opponent 3 included large sections of identical language. As explained in T 9/00, it would be an abuse of procedure for one opponent to file two oppositions. Therefore, according to the appellant, the filing of the opposition by opponent 2 on behalf of opponent 1 or opponent 3 represented an attempt to circumvent the law, which was in view of the considerations in G 3/97 and G 4/97 not admissible.
The board observed that in contrast to the situation in T 9/00, opponent 2 was a distinct legal person from opponent 1 and opponent 3. According to decisions G 3/97 and G 4/97, an opposition filed on behalf of a third party was inadmissible if the involvement of the opponent was to be regarded as circumventing the law by abuse of process, in particular if the opponent was acting on behalf of the patent proprietor or on behalf of a client without possessing the relevant qualifications required by Art. 134 EPC. The decisions G 3/97 and G 4/97 explicitly concluded that a circumvention of the law by abuse of process did not arise purely because a professional representative was acting in its own name on behalf of a client and that the burden of proof regarding the circumvention of the law by abuse of process was to be borne by the party alleging that the opposition was inadmissible.
The board held that, given the shared interest among opponents in revoking the patent, it was not uncommon for them to exchange documents and coordinate their submissions during opposition proceedings. Therefore, the citation of document D24 by opponent 2, and the presence of similar or identical passages in the notices of opposition filed by opponents 2 and 3, did not establish that opponent 2 acted on behalf of opponent 1 or opponent 3. The appellant had thus not provided convincing evidence that the opposition filed in the name of opponent 2 was filed on behalf of opponent 1 or opponent 3 to circumvent the law by abuse of process. Accordingly, the board confirmed the admissibility of the opposition filed by opponent 2.