4.8.2 Change of representative

In several cases, a change of representative has been put forward as an explanation for the late filing of facts, evidence and requests. As a rule, the boards do not accept that as a valid reason, as was the case, for example, in T 830/90 (late-filed requests) and T 430/89 (late-filed documents and arguments); see also T 736/99, T 497/11, T 139/12, T 792/12, T 1154/12 and T 846/13. In T 382/97 the board pointed out that the mere change of a representative was not a valid ground justifying the late filing of requests since it was an arbitrary move by the relevant party by which it could influence which procedural actions had to be considered as belated and which as timely. It was evident that such a situation would be contrary to any reasonable procedural conduct. Only if the change of representative was necessitated by proven exceptional and extraordinary circumstances might the board come to different conclusions. The board in T 1748/08 reiterated that a change in representative was usually brought about by the party itself and so generally speaking could not justify late filing.

In T 785/96, under cover of a letter sent just one month before the oral proceedings before the board, the appellant filed additional experiments. The appellant stated that the reason for this late filing was a change of representative, after which the necessity of the experiments had appeared. The board confirmed the decision T 97/94 (OJ 1998, 467) and stated that a change of representative did not form an acceptable ground for late filing unless it was due to force majeure. The new representative was obliged to continue the proceedings from the point they had reached when he took over from his predecessor (see also T 552/98).

In T 1585/05 the board noted that the fact that the late-filed requests were filed by a new representative bore no weight on the admissibility of the claims, since the ultimate responsibility for filing requests always remains that of the proprietors, so that the Board has to consider that, unless otherwise proven, all actions undertaken by the former representative were undertaken in agreement with the proprietors and thus expressed their desires (see T 1420/06). The new representative was therefore bound to continue the proceedings from the point they had reached when he took over from his predecessor. See also T 1351/10, in which the board held that a change of representative at the time when the grounds for appeal were filed did not justify filing the main request only one month before the oral proceedings before the board.

In T 1282/05, the board held, inter alia, that a withdrawal of the representative did not justify the late return to broader subject-matter which had not yet been discussed in the appeal proceedings because the board had to assume that all actions of the former representative had been performed in consultation with and with the approval of the appellant, to whom they therefore had to be imputed.

A change in the person handling the case is not an extraordinary circumstance justifying the filing of a request at a late stage in appeal proceedings, especially where the objections to be overcome were raised at the outset (T 1457/08).

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