Wednesday, 3 March 2010

T 1895/06 – Troubled By The Straw Man

[…] The appellant (proprietor) requested that the following questions be referred to the Enlarged Board of Appeal:

1. Is an opposition admissible in a case where an “opponent” receives instructions and evidence from a third party and acts as a straw man and/or a professional representative with the effect of delaying the opposition procedure?

2. Are the rules given by G 3/97 compatible with the principles of the Convention for the Protection of Human Rights and Fundamental Freedoms, which form part of the legal system of the EPO? In other words, in a case where the patentee cannot know the real identity of an opponent, whereas the opponent knows the identity of the patentee, which is public information, is the right to a fair hearing given to the patentee? [III]

[…] Since the admissibility of the opposition has been decided with res judicata effect in decision T 1284/01, the first of the proposed questions is no longer relevant to the present case. [6.3]

With regard to the second question, whether or not the appellant (proprietor) is aware of the true identity of the opponent (i.e. the person behind the straw man), the appellant (proprietor) is guaranteed a fair and public hearing by an independent and impartial tribunal in the form of the Board of Appeal: the true identity of the opponent does not influence this fundamental principle. Equally fair treatment is guaranteed to both parties to the proceedings. [6.4]

The Board therefore does not consider that in the present circumstances the above questions need to be referred to the Enlarged Board of Appeal. [6.5] 

To read the whole decision, click here.