The present appeal was filed by the opponent after the Opposition Division (OD) had maintained the opposed patent in amended form.
The decision deals with a company demerger and related procedural questions.
*** Translation of the French original ***
Transfer of the opponent status
[1.1] According to the established case law, an opposition pending before the EPO may be transferred or assigned to a third party as part of the opponent’s business assets (economic activity) together with the assets in the interests of which the opposition was filed. (cf. G 4/88 [order])
[1.2] In the present case, in view of the supporting evidence filed by the JB TEC (C) company, represented by the same representative having a power of attorney dated September 8, 2011 […], the Board considers that the transfer of the opponent (and, consequently, appellant) status of the JB TEC (A) company (registered in the company register (RCS) of Lyon (France) as n° 381 958 222 and struck off on September 16, 2010; see documents L1, L4b) to the JB TEC (C) company (registered in the company register of Lyon (France) on September 9, 2009, as n° 514 495 191; see documents L4a and L4b) has been established.
[1.2.1] As a matter of fact, the draft of the demerger agreement (traité de scission), both in its original (document L2) and rectified version (document L3) shows that the JB TEC (A) company has transferred
- its business (branche d’activité) related to classical sealed mechanical shakers to the Agitec SAS company, and
- its business related to magnetic stirrers for mainly pharmaceutical and biological uses (Board’s emphasis) […] to the JB TEC (C) company.
It should be noted that the corporate objective (objet social) of the JB TEC (C) company, as indicated in the excerpt from the company register of Lyon […] is to “commercialise, conceive, study, realise and provide service for all products and equipments intended for use in industry and in particular for biotechnology, pharmaceutical, cosmetic and food industries, etc.” The rectified draft of the demerger agreement […] discloses the remainder of the corporate objective in the following terms: “… working in the very demanding context of sanitary security that may require the use of techniques allowing to transfer power by means of magnetic coupling.”
The demerger agreement, which has been rectified based on accounting data only, after consultation of the demerger auditor (commissaire à la scission) and published in a newspaper authorized to publish legal advertisements, as required by French law, has been the object of a declaration of conformity […] signed on July 13, 2010, by Mr Mangeolle, the president and unique stockholder of both companies involved in the demerger agreement.
Thus it has been established that the initial draft has been validated in conformity with the applicable rules, which is a necessary prerequisite for a registration in the company register.
It has also been clearly demonstrated that the JB TEC (C) company is the transferee of the business related to magnetic stirrers, it being understood that it is precisely this equipment that is used for producing pharmaceutical, biotechnological and food products. Now the patent under consideration in the present proceedings concerns a magnetic stirrer.
[1.3] The Agitec company is only transferee of the business related to mechanical shakers. Therefore, it is excluded that the opposition was part of the business assets transferred to this company.
[1.4] Moreover, it has to be noted that the demerger under consideration has led to the dissolution without liquidation of the JB TEC (A) company […], which means that once this transaction had been achieved, there were no more assets to be allocated, nor liabilities to be covered.
On the documents transmitted on August 5, 2011, by the JB TEC company
[2.1] However, the reality of the transfer of the opponent status together with a transfer of business assets has to be distinguished from its procedural effectiveness. The latter requires the filing of a request in order to ensure legal security. This is why the change of party to the appeal proceedings cannot occur without having been brought to the attention of the Board. Otherwise, there could be procedural acts or decisions without the opponent - who is the sole authorised party - being involved (see T 19/97 [5]).
[2.2] The JB TEC (A) company having been dissolved on September 16, 2010, […], it did not have any legal personality any more, such that the power of attorney given to Mr Blanchard was null and void (caduc).
[2.3] However, Mr Blanchard has been designated as the representative of the JB TEC (C) company, the present holder of the opponent status, by means of an authorisation dated September 8, 2011 […], i.e. one year later. These pieces of information, as well as the request to transfer the opponent status to the JB TEC (C) company, have been brought to the attention of the Board on September 14, 2011, only.
[2.4] As a consequence, the documents under consideration have been removed from the proceedings as having been filed in an irregular manner.
[2.5] Upon request of the JB TEC (C) company, the content of said documents, comprising inter alia objections regarding the patentability of the subject-matter claimed in the auxiliary requests, has been re-introduced in the course of the oral proceedings (OPs), as an integral part of its oral submissions.
During the OPs, the Board has suggested that the OPs be postponed in order to safeguard the rights of the [patent proprietor].
However, the [patent proprietor] has declared that it was capable of presenting oral submissions without there being need for a postponement of the OPs.
[2.6] Consequently, in view of the particular circumstances, the Board has admitted the contents of said documents into the proceedings, irrespective of their belatedness (A 13(1)(2) RPBA).
Finally the patent was revoked.
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