2. Qualité d'opposant

In T 1127/23 the respondent (patent proprietor) argued that the appeal of appellant 1 (company Y GmbH) was inadmissible because the transfer of the opposition from company X OG (original opponent 1) to company Y GmbH (its universal successor) was invalid. Appellant 1 admitted that it had been acting as a straw man on behalf of a third party. Since that third party had paid for the opposition, the opposition had been a business asset in the third party's books according to the general principles of bookkeeping. Therefore, the opposition had not been an asset of company X OG which could be transferred to Y GmbH as part of the universal succession. Moreover, only the third party who paid for the opposition could have instructed X OG to withdraw the opposition and take other procedural steps regarding the opposition proceedings.

The board did not agree with the respondent. The status of opponent cannot be freely transferred (G 2/04). In G 4/88 the Enlarged Board distinguished between two cases in which the status of opponent may however be transferred: (i) in the case of universal succession of the opponent or (ii) when a relevant part of the opponent's business has been transferred, in which case the transfer or assignment of the opposition to a third party must be made as part of the transfer or assignment of the opponent's business assets together with the assets in the interests of which the opposition was filed. The board explained that in view of G 4/88 the status of opponent is validly transferred in the case of universal succession without further requirements having to be fulfilled. This implied that, in the case of universal succession, there was no need to make any further distinction between the opponent acting as a straw man or in its own interests, nor was it necessary to examine whether the opposition that had been filed could have been considered as an asset of the opponent, to determine whether the status of opponent had been validly transferred. Such a distinction would add an additional condition to those provided for in point 4 of the Reasons in G 4/88, which was not foreseen therein. Only when part of the opponent's assets had been transferred, was it necessary to examine whether the opposition related to the opponent’s business assets and could therefore have been transferred at the same time as those assets. In the present case, since a universal succession had taken place, the opposition had been validly and automatically transferred to the universal successor in law of company X OG from the date of the effective succession, regardless of whether X OG had acted as a straw man.

According to the board, the payment of the opposition costs by a third party and the general principles of bookkeeping were not relevant in the context of a universal succession since it was not necessary to examine whether a particular asset, and the opposition relating to it, had been transferred. Furthermore, accounting rules could not have any bearing on a party's status. The status of opponent was purely procedural, and the basis on which it was obtained was a matter of procedural law governed by the EPC. For the same reasons, the question of who had control over opposition proceedings and could decide, among other things, to withdraw the opposition, was not relevant for determining who could act as opponent. A person who fulfils the requirements of the EPC for filing an opposition becomes a party to the opposition proceedings (Art. 99(3) EPC), and in these proceedings, only the procedural acts performed by this party are relevant, regardless of the instructions they may receive from a third party.

Finally, the board pointed out that the respondent acknowledged that there was no abuse of procedure in the present case. The board did not see how the possibility of such an abuse occurring in other situations could be a valid ground for deciding that, in this case, appellant 1 did not have the status of opponent and appellant, and for declaring its appeal inadmissible.

The board concluded that company Y GmbH was entitled to act as opponent and appellant in the present case and that its appeal was admissible.