Monday, 1 March 2010

T 1895/06 – New Facts Cannot Overturn Res Judicata

In a recent post, I have commented a decision where a Board appeared to suggest that new facts and arguments could overturn res judicata concerning inventive step. The present decision rejects this approach in the case of a final decision concerning the admissibility of an opposition.

[…] The Board of Appeal, in decision T 1284/01, decided that the opposition in the present case is admissible. This final judgement is res judicata and, from the issuance of the decision, can no longer be challenged. [2.1]

The term “res judicata” defines “... a matter finally settled by a Court of competent jurisdiction, rendering that matter conclusive as to the rights of the parties...” Such a final judgment by a court of competent jurisdiction therefore constitutes an absolute bar to a subsequent legal action involving the same claim, demand or cause of action, and the same parties (T 934/91 [3]). [2.2]

Despite the conclusion in decision T 1284/01 that the opposition is admissible, the second decision of the Opposition Division (OD), dated 17 November 2006, addressed the “new facts” that the appellant (proprietor) had presented after the issuance of decision T 1284/01 and included a statement to indicate that the opposition is admissible. [2.3]

The [proprietor] submitted that new facts had been subsequently presented and that the finality of the previous decision only applied insofar are the facts are the same.

Following T 843/91, the current Board is of the opinion that the remittal proceedings should not afford the parties a further opportunity to attack the finally decided and therefore binding parts of the remitting decision by introducing new facts, since this would offend the general principle of legal certainty, i.e. the general interest of the public in the termination of legal disputes. Were it open to the parties to challenge these findings and for the OD to overturn them during subsequent proceedings on remittal, this would destroy the binding nature of the decision insofar as finally decided issues are concerned. [2.4]

The [proprietor] furthermore submitted that the OD had, in its decision of 17 November 2006, decided this issue anew, and the appellant (proprietor) had a right to appeal all findings of this latest decision, including the question of admissibility of the opposition.

In the present Board’s judgement, the res judicata effect of the previous decision T 1284/01 constituted an absolute bar to any reconsideration of the question of admissibility of the opposition. The conduct of the OD in this respect was erroneous: the admissibility of the opposition should not have been reconsidered, and, in view of the res judicata effect of the decision, could not have been re-decided.

In section 1. of the Reasons for the Decision, the OD concluded that “... the opposition is admissible.” In view of the above, this statement can only be seen as a mere communication of the clear and immutable legal position brought about by the earlier decision T 1284/01 of the Board of Appeal and cannot constitute an appealable decision. [2.5] 

I think this approach is to be approved. There is no legal certainty if issues that have been decided in a decision that has become definitive may be questioned again as soon as new facts appear. There has to be an end to litigation.

To read the whole decision, click here.