Friday, 25 September 2009

T 990/06 - The Enigma of the Missing Lawyer

A 19(2) EPC contains clear instructions as to how an Opposition Division (OD) has to be composed. As a consequence, the parties know who deals with and decides on their case in oral proceedings (OPs) so that the fulfilment of the requirements of A 19(2) as well as the impartiality of the members of the panel according to G 5/91 can be checked. For this reason, it is mandatory that the composition of the OD be clear and verifiable at each essential moment during the opposition divisions. Moreover, it is mandatory that the procedure of enlarging the OD by adding a legally qualified member under A 19(2) be verifiable. The same holds true for the withdrawal of such a legally qualified member when there is no more reason for his/her presence. [2.1]

In the present case, there are contradictions between the documents that have been sent to the parties and internal form 2040, which is available by file inspection. The internal form 2040 for the preparation of OPs was signed by three technically qualified members. The summons to OPs under R 71(1) was issued in the name of the three examiners, completed by the name of a legally qualified member. The OPs took place before an OD consisting of three members. The interlocutory decision was in the name of three technically qualified members and the legally qualified member. Therefore, the Board cannot check whether the decision announced in the OPs was taken by a lawfully composed OD and whether the written decision was issued by the same panel. [2.3]

Moreover, the file does not contain any formal indication that the OD has been enlarged according to A 19(2), nor any hint whether and how the OD was reduced back to three legally qualified members. If the OD was indeed enlarged by addition of a legally qualified member, the file would have to contain a decision to this effect, signed by the three members of the OD. If it was afterwards reduced, the file would also have to contain a decision to this effect, signed by the four members of the OD. [2.4]

The lawful composition of the OD is of foremost importance for the opposition proceedings. If there is any doubt concerning its lawful composition, then the lawfulness of the decision is also doubtful. The Board therefore comes to the conclusion that a serious procedural error concerning the composition of the OD cannot be excluded. [2.5]

The case is remitted to the first instance so that the proceedings, including the decision, can be carried out by a lawfully composed OD. [4]

To read the whole decision (in German), click here.