V. Représentation

In T 1262/22, the respondents (patent proprietors) alleged that the appeal was inadmissible because the notice of appeal was filed by a professional representative (K) who was not authorised at the time of filing.

Under Art. 1(1) of the Decision of the President of the EPO dated 12 July 2007 on the filing of authorisations, in the version as applicable at the time the notice of appeal in question was filed, a professional representative was required to file a signed authorisation only in the circumstances set out in Art. 1(2) and (3) of said decision. This was the case if a change of professional representatives had occurred without the EPO being notified that the previous representative's authorisation has ended.

In the case in hand, while representation during the opposition proceedings had been undertaken by professional representative B, the notice of appeal was signed by new professional representative K. Since B had not informed the EPO of the termination of its authorisation, it was still deemed authorised before the EPO, as provided for by R. 152(8) EPC. Hence, the board found there was nothing unusual in the fact that the EPO continued to communicate with B, nor could it be concluded on this basis that K was not authorised, as submitted by the respondents. From the legal framework, pursuant to R. 152(1) EPC and the said Decision of the President of 2007, the new representative K had to file an authorisation granted by the opponent/appellant; it did so of its own motion on 5 April 2022, the authorisation having been granted by the opponent on 25 March 2022..

In accordance with R. 152(2) EPC, filing the authorisation on 5 April 2022 remedied the deficiency concerning the representation of the opponent/appellant before the relevant period for filing an appeal under Art. 108 EPC expired, i.e. 12 April 2022. Therefore, the consequence indicated in R. 152(6) EPC, according to which if the required authorisation is not filed in due time any procedural step taken by the representative is deemed not to have been taken, did not materialise. The notice of appeal was thus validly filed.

This conclusion was not affected by the fact that at the time the notice of appeal was filed, B was also acting as the professional representative for this case, since the system of representation before the EPO permits representation by several representatives, as long as the applicable rules mentioned are respected. Nor was this conclusion affected by the fact that K's authorisation bore a signature which was dated 25 March 2022, i.e. after the filing of the notice of appeal. Contrary to the respondents' submissions, the EPC does not express a requirement that the authorisation be signed before the filing of the notice of appeal; this would even be inconsistent with R. 152(2) EPC, which allows for a deficiency to be remedied. An authorisation is an internal legal relationship between the representative and the party. Accordingly, the question of whether an authorisation was in existence at the time the notice of appeal was filed is irrelevant for the EPO, as long as any deficiency concerning the party's representation is remedied within the time limit under Art. 108 EPC.

The respondents further submitted that the EPO's letter dated 11 April 2022, with which K was asked to confirm whether they intended to take over representation of the opponent, showed that there were doubts about the effectiveness of the authorisation filed on 5 April 2022. The respondents concluded that K did not actually take over representation until the reply of 3 May 2022, meaning that they clearly were not authorised when filing the notice of appeal. The board did not agree. The EPO's letter was aimed merely at clarifying if B was still a representative in addition to K, or whether K had taken over as the sole representative. K’s reply of 3 May 2022 could also not be understood as an actual taking over of representation for the first time. Such a conclusion would disregard the fact that K had already filed an authorisation granted by the opponent/appellant on 5 April 2022. Nothing more was actually required.

According to the board, the decisions cited by the respondents were not applicable.

The notice of appeal was therefore validly filed.

In T 412/24 the appellant (patent proprietor) had contested the admissibility of the (first) opposition relying on the following points concerning the (first) opponent: (i) the opponent's professional representative could not represent the company since he was simultaneously managing the legal entity he represented; (ii) the identity of the opponent could not be unequivocally determined; (iii) the opponent could not act as such because carrying out activities reserved to professional representatives without the necessary qualifications circumvented the principles of representation; and (iv) the opponent's change of name affected the admissibility of the opposition.

Concerning the representation, Mr N, the representative of the (first) opponent, a French company in the form initially of a société simplifiée unipersonnelle (SASU) then of a société à responsabilité limitée (SARL), was the president of the SASU and also a professional representative.

The board stated that – contrary to the proprietor’s allegations – Art. 133 and 134 EPC together with R. 152 EPC and the Decision of the President of the EPO of 12 July 2007 on the filing of authorisations (OJ SE 3/2007, 128) constituted a complete and self-contained set of rules on representation in proceedings established by the EPC. A legal person having its seat in an EPC contracting state is not obliged to be represented by a professional representative (Art. 133(1) EPC). Furthermore, persons whose names appear on the list of professional representatives are entitled to act in all proceedings established by the EPC (Art. 134 EPC). A legal person having its seat in an EPC contracting state can act in proceedings before the EPO through its legal representatives. At the time the opposition was filed, Mr N in his capacity as president of the SASU was entitled to represent the SASU since under French law (Art. L. 227 Commercial Code) he was entitled to act on behalf of the legal person in all circumstances. As a professional representative, Mr N would have been entitled to act not only as the president of the SASU, but also as a professional representative appointed by that legal person.

For the sake of completeness, the board explained why neither the references to French and German law, nor the reference to general principles under Art. 125 EPC could lead to the conclusion that the company was prevented from appointing Mr N as its professional representative before the EPO. At the oral proceedings before the board, the appellant referred to the order of UPC_CoA_563/2024. The board noted that the conclusion in that case rested on the specific provisions of the UPCA, in particular Art. 48(1) UPCA (mirroring Art. 19 of the Statute of the CJEU) and R. 8(1) UPCA, which require that both natural and legal persons be represented. The CJEU had identified as one of the objectives of mandatory representation in CJEU proceedings ensuring that the representative of a legal person is sufficiently distant from the party represented (C-515/17 P and C-561/17 P). According to the board, however, even if this were regarded as a general principle of the EPC contracting states, it could not be transposed to the EPC framework. Principles of procedural law under Art. 125 EPC may be invoked to fill gaps, but not to modify the EPC framework. Introducing a corollary of the prohibition of self-representation into a system that expressly allows it would however amount to such a modification.

On the identity of the opponent, the board held that the opposition was clearly filed on behalf of SARL Cabinet NÜ. The only uncertainty, based on the submissions of the proprietor itself, concerned whether Mr N was representing the opponent as a European patent attorney or in his capacity as the president of that company. Nonetheless, this alleged ambiguity could not raise any doubt about the identity of the opponent. As regards the change of the opponent’s name, the board observed that there had been no change of the identity of the opponent.

The alleged circumvention of the law was also rejected. The board noted that this would occur if a person not entitled to act as a professional representative performed all the activities typically carried out by professional representatives while assuming the role of a party, in order to circumvent the prohibition on unqualified representation, but Mr N was a qualified professional representative.

In line with T 1893/22, which related to the earlier application, the board concluded that the (first) opposition was admissible. The appeal was dismissed.