Tuesday 17 April 2012

T 1685/08 - Inexistent


An opposition was filed on 21 November 2006 by Jochen R. (c/o Christophersen & Partner) in the name of the opponent (Gain Technologies).

During the opposition proceedings Ulrich C. notified the Office by a letter dated 5 July 2007 that the association Christophersen & Partner (“Zusammenschluss 193”) had taken over the representation from Jochen R.

The Opposition Division maintained the opposed patent in amended form. The decision was posted on July 2, 2008.

The opponent lodged an appeal against this decision. The notice of appeal was signed by Ulrich C.

On February 19, 2010, the representative of the patent proprietor informed the Board that the opponent might have gone out of business and might therefore no longer be in a position to pursue the appeal.

On November 10, 2010, the representative of the patent proprietor informed the Board that it had come to his attention that Gain Technologies was not, and never has been a legal entity, but was a trading name registered as an “assumed” name by Plastic Moulded Technologies, Inc.

On December 14, 2010, the representative of the opponent was requested to give notice whether or not the company and appellant Gain Technologies (still) existed and whether or not he still represented the opponent.

On March 16, 2011, the representative responded that he had not been the representative of the opponent when the opposition was filed.

In a communication dated April 1, 2011, the Board noted that the new representative, Ulrich C., and not Jochen R. himself, had notified the Office by a letter dated 5 July 2007 that his association had taken over all files from Jochen R.

The Board expressed its provisional opinion that, since Ulrich C. was not an appointed representative of the appellant when the opposition was filed, at the time Jochen R. had filed the opposition he was not acting as a member of the association of Christophersen & Partner, but as the sole representative of the opponent.

The Board further noted that Jochen R. was deemed to be authorised until the termination of his authorisation was communicated to the EPO, cf. R 152(8). However, this had not been confirmed by filing of the original and a copy of the authorisation of the new representative, as required by Article 1(2) of the Decision of the President of the EPO dated 19 July 1991 on the filing of authorisations (OJ EPO 1991, 408).

Moreover, since under the circumstances severe doubts existed whether the appellant Gain Technologies was at present a legal entity (cf. R 76(2)(a) and R 41(2)(c)) and whether the new representative was entitled to act, Ulrich C. was requested to produce an authorisation within two months after the notification of this Communication, cf. Article 1(3) of the Decision of the PEPO dated 12 July 2007 on the filing of authorisations (OJ SE 3/2007, 128).

The Board further stated:
“If the authorisation was not in existence at the time the Notice of Appeal was filed, the appeal shall be deemed not to have been filed, cf. R 152(6), which stipulates that if a required authorisation is not filed in due time, any procedural steps taken by the representative, other than the filing of a European patent application, shall be deemed not to have been taken, without prejudice to any other legal consequences provided for by this Convention.”
No reply was given within the set time limit.

The notice of appeal filed on 1 September 2008 was signed by Ulrich C. However, since no authorisation has been filed, there is no proof that the new representative was entitled to act on behalf of the appellant when the notice of appeal was filed.

It follows that the notice of appeal, and therefore the appeal itself is deemed not to have been filed, cf. R 152(6). Consequently, the appeal did not come into existence and the appeal fee must be refunded (see T 323/87).

To download the whole decision, click here.

The file wrapper can be found here.

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