Wednesday, 20 June 2012

T 1751/07 – Not Clear-Cut Enough

This appeal was filed against the refusal of the application under consideration by the Examining Division.

Few days before the oral proceedings before the Board, the appellant requested that another company be registered as the proprietor of the application. Unfortunately, this document is not available for file inspection. A signed authorisation for the (same) attorney was filed simultaneously.

The Board found the evidence for the transfer to be insufficient:

[2] According to the jurisprudence of the boards of appeal, assessing whether there are documents satisfying the EPO that a transfer has taken place in accordance with R 22(1) and (3) and making the entry in the register is the responsibility of the relevant department of first instance. Accordingly, in appeal proceedings, substitution of another party for the original applicant is possible only once the relevant department of first instance has made the entry or where there is clear-cut evidence of a transfer (J 26/95 [2]).

The documents produced with letter dated 23 April 2012 do not constitute clear-cut evidence of a transfer. They only created the obligation to assign rights, and did not constitute the assignment itself. The effective date of the assignment and possible conditions to be fulfilled before the assignment becomes effective cannot be inferred from the document produced.

Thus, the board was not in a position to replace the party shown in the register as proprietor of the application at the date on which the notice of appeal had been filed, and the representative therefore spoke in the name of that company.

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