This decision deals with an interesting configuration where several appeals were filed against the revocation of the patent by the Opposition Division: one by a licensee, another one by the official patentee and a third one by a company to which the patent had been (unofficially) transferred. The opponent thought that not even one of them should be admitted. The Board disagrees.
Appeal of Appellant I, H3B Holdings Ltd
[1.1] A notice of appeal requesting that the decision be set aside was filed by this appellant on 8 April 2008, asserting that it was “Master Licensee” acting on behalf of the proprietor of the patent in suit, namely “Franz Haase” (Appellant II). However, H3B Holdings Limited did not claim to be and was not at the time either the proprietor of the patent in suit (see below) or able to represent the proprietor in proceedings before the EPO (see A 134(1)). For this reason alone, this appeal must be rejected as inadmissible.
Appeal of Appellant II, Franz Haase III
[1.2] A notice of appeal was filed by a representative on behalf of this appellant on 10 April 2008, claiming to be the registered proprietor. The patent in suit had been granted in the name of Franz Haase III, who also was and still is named as proprietor in the Register of European Patents, and who as proprietor was also a party to the decision to revoke the patent. Prima facie therefore, the notice of appeal was filed by a person adversely affected by the decision to revoke the patent (A 107). A statement of grounds of appeal was subsequently filed on behalf of this appellant on 11 June 2008.
[1.3] However, the above notice of appeal filed on behalf of Appellant II also stated that there had been a transfer of rights from Franz Haase III to Kwench Systems International LLC (Appellant III) and that “for the avoidance of doubt” notice of appeal was also given on behalf of Appellant III. A single appeal fee was paid. At that stage, no evidence of any transfer had been filed with the EPO, no request had been made to register any such transfer and no appropriate transfer fee had been paid. The notice as signed by the representative was followed by the words “Professional Representative for Kwench Systems International LLC, Association No. 177”.
[1.4] The Respondent argues that the appeal by Franz Haase III is inadmissible. It is argued, first, that while it is legitimate to file a single appeal in the name of alternative appellants where there is uncertainty as to the correct appellant (see G 2/04 [3.2]), in the present case there was no uncertainty because no transfer of proprietor had been requested and so no appeal could have been filed on behalf of Appellant III. However, the Respondent goes on to argue that no appeal could have been filed on behalf of Appellant II either since at the relevant time it was no longer the proprietor of the patent.
The Board understands this to be a reference to the fact that a transfer of the patent, based on an assignment dated 22 September 2005, had in fact been registered in the United Kingdom register of patents on 22 May 2006. Although the Board considers this latter argument to be wrong (see paragraph [1.8]), the Respondent cannot have it both ways: the mere fact of the argument, even if wrong, shows that it was legitimate for a notice of appeal to be filed in the names of alternative appellants.
[1.5] The Respondent argues, secondly, that the notice of appeal was filed by the representative expressly on behalf of Appellant III, and therefore was not filed on behalf of Appellant II. Further, although an earlier authorisation dated 28 November 2006 had been filed by the representative, this named Franz R. Haase as the client and there was nothing to show that this was the same person as Appellant II (Franz Haase III). In any event, at this date, the United Kingdom patent had already been transferred to Appellant III and so the authorisation could not have been effective.
[1.6] The Board cannot accept these arguments. Although the words underneath the signature to the notice of appeal indicate that the representative was acting on behalf of Appellant III, this does not contradict the earlier statement in the notice that the notice of appeal was also given on behalf of the registered proprietor, Appellant II. Subject to the point made by the Respondent about the precise identity of the client, the representative had been acting for Appellant II in the opposition proceedings and there is nothing to suggest that he no longer had authority to act when the notice of appeal was filed. Given the background circumstances, the ordinary reading of the notice is also that the representative was claiming authority to act for both named appellants.
As to the identity of his client, the Board has no reason to believe that Franz R. Haase was not the same person as Appellant II (Franz Haase III). The letter dated 20 December 2006 enclosing the authority ran as follows:
“Re: EP 1,132,528 B1Proprietor: Haase, Franz III....I act on behalf of the proprietor (Franz Haase) of the above patent, and enclose a copy of a letter dated 28th November 2006, which authorises [the representative’s firm] to represent the proprietor in relation to patents held in his name. ...”
The position could hardly have been clearer.
[1.7] The appeal of Franz Hasse III is therefore admissible.
Appeal of Appellant III, Kwench Systems International LLC
[1.8] For a transferee of a patent to be entitled to appeal, the necessary documents establishing the transfer, the transfer application and the transfer fee must all be filed before the expiry of the period of appeal: see T 656/98 [headnote]. This was not done in the present case, so that as far as the EPO is concerned Franz Haase III was still the proprietor at the date of the notice of appeal.
On any basis therefore, this appeal must be rejected as inadmissible.
Should you wish to downlaod the whole decision, just click here.
NB: This decision has already been reported on Laurent Teyssèdre’s blog.
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