2.2. Universal succession

In T 349/86 (OJ 1988, 345) the board referred to R. 60(2) EPC 1973, which stated that in the event of the death of the opponent the opposition proceedings could be continued by the EPO of its own motion, even without the participation of the heirs. According to the board this may be read as definitely stating that an opposition may be transferred to a deceased opponent's heirs and, by analogy, to a company absorbing the opposing company by merger or takeover (see also T 1091/02, OJ 2005,14). In G 4/88 the Enlarged Board confirmed that the opposition may be transferred to the opponent's universal successor in law (point 4 of the Reasons). In T 475/88, the board held that the appeal filed in the name of Hoechst AG was admissible, as opponent status had been transferred to that company on its merger with Ruhrchemie AG.

In T 2357/12 the board was concerned with a situation in which the transfer of all assets of an enterprise had been made whose legal entity had subsequently been dissolved. In its assessment of this situation, the board noted that "universal succession" as an exception to R. 22(3) EPC was a concept of procedural law under the EPC and was to be construed autonomously by the EPO, independent from national law. Under the case law of the boards of appeal, the main considerations for acknowledging that a universal succession has taken place were legal certainty as to the person of the successor and the need to avoid a legal vacuum. Under that case law, the transfer of all assets of an enterprise, immediately followed by its dissolution as a legal entity, could constitute universal succession. The board applied these principles to the facts of the case and concluded that although there was no genuine concept of "universal succession" under the national law in question (State of Delaware), the case at hand was to be considered one of universal succession under EPC case law. See also T 1755/14 for a case in which universal succession occurred through "accrual" ("Anwachsung" under German law).

In T 659/92 (OJ 1995, 519) there had been no universal succession. There was nothing to indicate that the opponent's business assets had been contractually transferred. The board concluded that a unilateral declaration by the owner of rights that he had transferred industrial property rights and opponent status in proceedings relating to a particular right could not of itself effect universal succession by transfer of business assets.

In T 531/11 the board held that an excerpt from a purchase contract stating that a company has been acquired "through sale of individual business assets" showed that under the terms of the contract there has been no universal succession.

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