Friday, 9 October 2009

T 1068/06 - Opposition Filed by a Company Without Legal Personality

The proprietor of the patent considered the appeal of Schott AG inadmissible because the opposition filed at that time by Schott Glas was inadmissible. According to the proprietor, Schott Glas was not a legal person but a legally dependent company of the Carl-Zeiss-Foundation ; as a consequence, it could not file an opposition in its own name. [VII]

Until its transformation into a joint-stock company, which has taken place in the meantime, Schott Glas, having its office in Mainz, was a foundation company of the Carl-Zeiss-Foundation without legal personality. It was registered as “Schott Glaswerke” in the Commercial Registry. The registered business proprietor was the Carl-Zeiss-Foundation in Heidenheim. According to article 17, first paragraph, of the German Commercial Code (HGB), the company (here : Schott Glaswerke or Schott Glas) of a merchant (here : Carl-Zeiss-Foundation) is the name under which the merchant conducts his business and signs documents. According to paragraph 2 of the same provision, the merchant can sue and be sued under the name of his company. According to German law, the proprietor of the company thus participates under his business name, i.e. the company, in legal and business relations. Therefore the Board has no doubt that the company Schott Glas which belongs to the Carl-Zeiss-Foundation was able to file an opposition against a European patent under this name. [1.1]

I find this reasoning noteworthy in so far as national law is used to establish that Carl Zeiss, who could (should ?) have filed the opposition under its own name was allowed to file an opposition under the name of one its daughter companies without legal personality.

A second aspect concerns the transfer of the opposition to Schott Glas AG. I would have expected the Board to have a closer look at the transfer of business assets from Schott Glas to Schott AG, but it is likely that this change of legal status of Schott was in line with the requirements of EPC case law concerning transfer of opponent status.

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


Laurent said...

In 2007, a Board of appeal held a transfer of opposition from Schott Glas to Schott AG as inadmissible because it was not sure that all the relevant assets were actually transfered.

See here