T 90/07 – Appeal Filed After Bankruptcy

On 30 April 2004 the European patent attorneys Weickmann & Weickmann filed an opposition against the patent-in-suit on behalf of febit AG. In the letter of opposition it was announced that the Power of Attorney would follow. [1.1]

On 1 July 2004 insolvency proceedings of febit AG were opened, attorney at law Mr. Seagon became insolvency administrator. [1.2]

The Power of Attorney including appeal proceedings before the EPO dated 21 December 2004, was signed by Mr. Seagon and carried the stamp “Christopher Seagon Rechtsanwalt als Insolvenzverwalter” (Christopher Seagon Attorney at law [acting] as insolvency administrator). [1.3]

On 2 August 2006 a request was made to transfer the status as an opponent from febit AG to febit biotech GmbH. Since EPO did not consider this request to be sufficiently substantiated, the request was withdrawn by [febit AG’s] representative during oral proceedings before the Opposition Division (OD). [1.4]

In its decision the OD stated: “Given the request for transfer of the opponent status was withdrawn, there is no doubt as to the identity of the parties in the proceedings and the opposition division is in a position to take a decision.” [1.5]

On 15 January 2007 an appeal was filed against the decision of the OD “in the name and on behalf of febit AG”. [1.6]

The Board agrees with the Patent Proprietors that, according to German law, a company terminates to exist as soon as insolvency proceedings have started (§ 262(1) lit.3 Aktiengesetz). In these cases the insolvency administrator would have to act under his own name and not in the name of the insolvency debtor. [1.7]

However, on the basis of the documents on file there is no doubt that Mr. Seagon acted as insolvency administrator to represent the interests of the insolvent febit AG (see J 25/86). Therefore, neither in opposition nor in appeal proceedings there was any doubt as to the identity of [the opponent]. [1.8]

Thus the appeal of [the opponent] is admissible. [1.9] 

To read the whole decision, click here. 

NB: This decision has also been discussed on the Blog du droit européen des brevets.