Résumé de EPC2000 Art 099 pour la décision T0846/22 du 30.07.2024

See also abstract under Article 104(1) EPC. In T 846/22 the respondent (patent proprietor) questioned the status of the appellant as a legal person in the context of Art. 99(1) EPC, according to which "any person may give notice to the European Patent Office of opposition [ ... ] in accordance with the Implementing Regulations". "Any person" is to be interpreted in line with Art. 58 EPC as "any natural or legal person, or any body equivalent to a legal person by virtue of the law governing it" (G 3/99, OJ 2002, 347; G 1/13, OJ 2015, 42). The respondent had submitted that the appellant, a UK company, had been a "dormant company" under UK law at the time of filing the opposition and had never changed this status. The respondent argued that this meant that the appellant was not entitled to conduct any business and could not be equated to a legal person. The board noted that the status of a legal person as such, i.e. the question as to whether they had the capacity to sue or be sued, was a matter of national law. The right to bring opposition proceedings, to take part in such proceedings, to file an appeal and to take part in appeal proceedings was, by contrast, a matter of procedural law governed by the EPC (G 1/13, point 5.3 of the Reasons with reference to G 3/97, OJ 1999, 245, point 2.1 of the Reasons). Hence, it had to be established whether the appellant, in particular at the time of filing the notice of opposition and the notice of appeal, had the status of a legal person. The board referred to Section 1169 of the (UK) Companies Act 2006, according to which a company is dormant during any period in which it has no significant accounting transactions. Although inactive, a dormant company was not struck off, but remained on the Companies House register. This meant that a dormant company maintained the status of a legal person. The board thus agreed with the conclusion drawn to this effect in T 184/11. It followed therefore that the appellant had the status of a legal person at the time of filing the notice of opposition and throughout the opposition and appeal proceedings. The respondent's argument in this respect was therefore not convincing. Whether the appellant had engaged in transactions which could have led to the loss of its dormant status went beyond the assessment of its status as a legal person. The assessment of potential financial relationships between a dormant company and an appointed representative was of no relevance to establishing the legal status of the company as a legal person either. Moreover, the opponent's representative was appointed in accordance with the requirements of the EPC. Hence, there was no reason for the board to doubt that the representative was duly authorised. The remaining provisions under the EPC for the admissibility of the opposition and appeal, including the payment of the relevant fees, were also complied with. As regards the contention that the appellant had been acting on behalf of a third party with the intention of avoiding any liability for possible costs apportioned to the appellant under Art. 104 EPC, the board noted that acting on behalf of a third party could not be seen as a circumvention of the law unless further circumstances were involved and there was no requirement under the EPC that a party be equipped with sufficient financial means to comply with a merely hypothetical costs order. Moreover, the EPC did not offer the patent proprietor any kind of guarantee that an opponent would be able in fact to reimburse costs awarded against them (G 3/97, point 3.2.6 of the Reasons). For these reasons, the board did not see any abuse of procedure by the appellant which might render the opposition and/or the appeal inadmissible. The board thus refused the respondent's requests that the decision under appeal be set aside and the opposition be held inadmissible or that the appeal be held inadmissible.