Résumé de EPC2000 Art 099 pour la décision T1121/21 du 26.09.2022

In T 1121/21 the opposition division in the appeal at issue had rejected the opposition as inadmissible pursuant to R. 77(1) EPC, having found an apparent lack of a clear indication of the opponent in the notice of opposition and in the accompanying letter. The board noted that the letter of opposition clearly identified one single legal person, namely Evonik Degussa GmbH and could not identify in the opposition letter any concrete indication that the opposition could have been filed by Evonik Industries AG, as suggested in the appealed decision and by the respondent (patent proprietor); this company was not mentioned at all in the letter. The opposition division had found a basis for its assumption in the logo, mentioning "Evonik Industries" on the top of pages 2 to 13 of the letter of opposition. The board observed that a logo was merely a graphical symbol, often present on letterheads, designed to communicate quickly the corporate identity. Due to its function, its generic presence on official papers and its typical symbolic representation, the board found that a logo alone could not be a sufficient legal identification of a company for the purposes of R. 76(2)(a) EPC. The respondent further based its argument that Evonik Industries AG was the true opponent on the sentence in the notice of opposition indicating payment of the opposition fee would be paid from an account owned by Evonik industries. The board found this sentence could not be interpreted as meaning that Evonik Industries AG was the opponent. The fact alone that Evonik Industries AG was the owner of the deposit account was completely irrelevant to the question of the identification of the opponent. It was a generally accepted principle that in proceedings before the EPO fees can be paid by any third person. The fact that fees were paid by another company within the Evonik group was not sufficient to raise reasonable doubts as to the identity of the party to the proceedings. As to the fact that in the accompanying letter the address of Evonik Patent Association was indicated as "c/o Evonik Industries AG", the board had difficulties in following how a mere indication of the postal address of the association of representatives, Evonik Patent Association, may have an objective bearing on the identification of the opponent that they represented. In the absence of any concrete mentioning of Evonik Industries AG in the relevant documents, except for the accompanying letter as owner of the deposit account and in the "c/o" address of the association of representatives, the board found no reasonable support for the assumption that Evonik Industries AG could be the opponent in the present case. The board was also not convinced by the argument that Dr Forster - who had signed the letter of opposition - could be considered as the opponent; the fact that his name, contact data and the further responsibilities (Legal, IP Management & Compliance IP Management) were indicated on the letter merely indicated that he, as representative, was the contact person and did not cast any doubts on the fact that the letter clearly originated from Evonik Degussa GmbH. The wrong indication in the accompanying letter of Dr Forster in the box mentioning the represented party was an obvious mistake that could not plausibly lead to the opponent's designation being understood as the natural person Dr Forster. The board distinguished the present case from T 25/85, cited by the respondent, in which at expiry of the opposition period the name of the opponent was completely missing, and from T 579/16 in which two distinct entities were mentioned in the notice of opposition and in Form 2300, so that there were objective doubts upon expiry of the opposition period as to the identity of the opponent. In view of the above considerations, the board concluded that the opposition was admissible and remitted the case to the opposition division for further prosecution.