Tuesday, 29 September 2009

T 534/07 - Gladiators May Change Sides

Appellant III alleged the existence of a conflict of interest in the person of the representative having formerly represented appellant III (opponent 06) and formally still representing opponent 03 and now representing appellant I, the patent proprietor.

The board notes first of all that even though the representative has not formally withdrawn from representation as regards opponent 03, he has not acted for opponent 03 in the present appeal proceedings. Opponent 03 is only a party as of right and has not taken position in the appeal proceedings, i.e. after having acquired the patent proprietor, which appears perfectly normal in the circumstances. [6]

Appellant III did not indicate on which legal basis the board could be entitled to accede to its request and exclude the representatives of the office of C&R from further representing any of the parties, in particular appellant I, the patent proprietor, and the board also sees none. [7]

The existence of a conflict of interest, if any, concerns the relation between the representative and his client and may, depending on the circumstances of the case, entail disciplinary measures being taken against the representative under the Regulation on discipline. This would not be a matter for the board. [8]

By contrast, the validity of procedural acts undertaken by the representative for his client is not affected by the existence of a conflict of interest. Nor is there any legal basis for excluding a professional representative whose name appears on the list of professional representatives from representing a party in proceedings before the EPO (see also T 1009/97 [2 ff.]). On the contrary, A 134(5) EPC stipulates that persons whose names appear on the list of professional representatives shall be entitled to act in all proceedings established by the EPC. So are the representatives of the office of C&R. [9]

To read the whole decision, click here.