Tuesday, 7 December 2010

T 2058/08 – The Wrong Person

What happens when a company that is not party to the opposition proceedings is the sole appellant against the decision of the Opposition Division (OD) to reject the opposition? Can the appeal fee be reimbursed? And may the other parties request an apportionment of costs?

In the present case, an opposition was filed by the BOC group and Pfeiffer Vacuum. The OD rejected the oppositions. In a fax dated October 13, 2008, the professional representative who had represented the BOC Group filed an appeal on behalf of the Edwards company. The notice of appeal was very explicitly filed in the name of Edwards:

*** Translation from the German ***

Admissibility of the appeal under A 107

[1] In the annex to its summons to oral proceedings (OPs) on May 12, 2010, the Board had already made the following statement in paragraph 1:
“Under A 107 only parties to proceedings who are adversely affected by a decision are entitled to file an appeal. In the present case, only the opponent is adversely affected by the decision to reject the opposition. However, the Board notes that the name of the legal person mentioned as appellant in the notice of appeal - Edwards Ltd. – as well as its address do not match the name and address of the opponent – BOC Group plc. The file does not contain any indication that there was a transfer of the opponent status within the meaning of G 4/88, from BOC Group plc to Edwards Ltd. Therefore, it appears that the appeal was filed by a legal person who is neither party to the proceedings nor adversely affected by the decision. In this case the appeal would be inadmissible. The Board points out that according to the established case law a legal transfer is only effective when the transfer has been explained in a conclusive way (schlüssig) and evidence has been provided (see also T 428/08 [4, 2nd paragraph] as well as Case Law of the Boards of appeal, 5th edition, 2006, VII.D.5.2.1).”
None of the parties has made statements of provided evidence that such a legal transfer has taken place before the [notice of] appeal reached the EPO. Therefore, there is no good reason for the Board to deviate from its statement that the appeal has been filed by a [legal person] who is not party to the proceedings. Thus the appeal does not comply with A 107, first sentence, and has to be rejected as inadmissible under R 101(1).

Request for reimbursement of the appeal fee

[2] R 103(1) provides the conditions under which the appeal fee is to be reimbursed. In the present case there was no interlocutory revision nor was the appeal found to be allowable (R 103(1)(a)), nor was the appeal withdrawn before the period for filing the statement of grounds of appeal had expired (R 103(1)(b)). Thus the requirements for reimbursement under R 103 are not fulfilled. The request for reimbursement cannot be granted.

Request for apportionment of costs

[3] According to the established case law apportionment of costs under A 104(1) is ordered when and if this is equitable, see Article 16(1) RPBA. In the present case the appellant has announced in due time that it would not attend the OPs and has withdrawn its request for OPs in due time. Therefore, it has done everything in its power in order to avoid the OPs that had already been summoned and to save expenses for the other parties. Consequently, the Board considers that a different apportionment of costs than provided in A 104(1) is not equitable. The request for apportionment of costs cannot be granted.

Should you wish to download the whole decision (in German), just click here.