This decision deals with a situation where both the notice of appeal and the statement of grounds of appeal were erroneously filed in the name of a company different from the company that had opposed the patent.
Pursuant to A 107 EPC 1973 only those who were parties to proceedings that led to the impugned decision can appeal.
The opposition was filed by “Lisa Dräxlmaier GmbH” (LDG). In the impugned decision this name was given as the name of the opponent. [1]
In the notice of appeal that was filed [on June 7, 2006] by the professional representative who had represented the opponent before the Opposition Division, the company “DST Dräxlmaier Systemtechnik GmbH” (DSTG) was given as the name of the appellant. Therefore a legal person different from the opponent was named. However, an indication required pursuant to R 64a) together with R 26(2) EPC 1973 in order to legally identify the DSTG company, i.e. the address of the appellant, was missing.
At the same time DSTG was also cited as the name of the opponent in the subject line (Betreff). This indication was obviously wrong because the content of the file (Akteninhalt) showed that the LDG company was the opponent. As the appeal was filed by the same professional representative who had represented the opponent LDG, it was obvious both for the Board of appeal and for the patentee as well as the rest of the public that the writer of the notice of appeal had made an error. This incorrectness necessarily shed doubt on the indication concerning the legal person of the appellant because an error concerning the opposing company can also indicate an error concerning the appealing company. [2]
Decisions T 97/98 and T 340/92 act on the assumption that an incorrect or erroneous indication concerning the person of the appellant cannot be treated more strictly on a legal level than the omission of the indication of the identity of the appellant. Pursuant R 65(2) EPC 1973, the latter can lead to the inadmissibility of the appeal only if the deficiency is not remedied within a time limit to be fixed by the Board of appeal. However, there is a prerequisite for such a remedy: it has to be apparent from the notice of appeal and the rest of the file that there was the intention to file the appeal in the name of this person. [3]
The Board considers this case law relevant, as an incorrectness which is apparent for all the parties to the proceedings and the public without further ado should not be treated differently than the omission of an indication that is necessary for identifying a party.
The real existence and identity of the DSTG company as appellant was not beyond all doubt because of the indications of the notice of appeal. Therefore the Board should have sent an invitation to complete or clarify the indications pursuant to R 65(2) EPC 1973 in order to identify the person of the appellant without any legal doubt. In response to this invitation, there could have been a correction of the name of the appellant in the same manner as if the notice of appeal had not contained any indication concerning the person of the appellant. As the professional representative had filed a correcting statement on October 2, 2006, without having received an invitation by the Board pursuant to R 65(2) EPC 1973, the correction was filed in time. There was no need to file further details concerning the legal person of the LDG company as these details were already known from the opposition proceedings. [4]
The Board is also convinced that the professional representative had the intention, when filing the appeal, to do so in the name of LDG because he referred in the notice of appeal to the person of the opponent and used the same internal file reference that had been used in the correspondence with the EPO during the opposition proceedings for the LDG company.
The possibility envisaged by the patentee that the LDG company had transferred its opponent status to the DSTG company is, in the opinion of the Board, a purely speculative assumption that is not suggested by any external circumstances and which does not result from the mail [instructing the professional representative to file an appeal] dated June 7, 2006, which was presented by the professional representative. The engagement letter dated October 28, 2004 shows that it was employees of the DSTG company who negotiated with the professional representative of the opponent but that they expressly named the LDG company as opponent. [5]
As the statement of grounds of appeal dated August 2, 2006 refers to “the appeal filed in our letter of June 7, 2006” without naming an appellant, it ensues that the intention was to file the statement of grounds of appeal for the person named in the notice of appeal. This interpretation is mandatory and independent from the fact that in the subject line the opponent was incorrectly named as DSTG.
Finally the correction in due time of the name of the opponent in the notice of appeal dated June 7, 2006 also leads to the conclusion that the statement of grounds of appeal dated August 2, 2006, as a consequence of its reference to the notice of appeal, was also legally filed in the name of the LDG company. [6]
As both the notice of appeal dated June 7, 2006 and the statement of grounds of appeal were legally filed in the name of LDG, the appellant is the LDG company, which was a party to the opposition proceedings. [7]
To read the whole decision (in German), click here.
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