JANUARY 2014: BOARD OF APPEALS DECISION T22 _ 09 - IS AN APPEAL ADMISSIBLE WHEN FILED IN THE NAME OF A DEAD COMPANY WHICH IS LATER RESURRECTED ?
1. a) Generally, when filing an appeal against a decision by the EPO, the person filing the appeal must exist.
In case of a legal entity, this means that it must exist according to the national law under which it was created.
Under UK law, dissolved companies can be restored so that the company is deemed to have continued in existence as if it had not been dissolved or struck off the register.
b) This legal aspect led to an interesting case before the Board of Appeals of the EPO.
A UK Limited company filed an opposition in 2004. The company was dissolved in 2005. On October 29, 2008 the Opposition Division decided the maintenance of the patent in amended form.
The dissolved company filed an appeal against the decision in 2008/2009. In 2012, the respondent (patentee) raised an objection of lack of admissibility, as the appealing company did not exist anymore.
In December 2012, the company was restored under UK law and the restoration had retroactive effect as if the company had continued to exist.
2. The Board of Appeals referred the following questions to the Enlarged Board of Appeals:
a) Where an opposition is filed by a company which is dissolved before the Opposition Division issues a decision maintaining the opposed patent in amended form, but that company is subsequently restored to the register of companies under a provision of the national law governing the company, by virtue of which the company is deemed to have continued in existence as if it had not been dissolved, must the European Patent Office recognize the retroactive effect of that provision of national law and allow the opposition proceedings to be continued by the restored company?
b) Where an appeal is filed in the name of the dissolved company against the decision maintaining the patent in amended form, and the restoration of the company to the register of companies, with retroactive effect as described in question 1, takes place after the filing of the appeal and after the expiry of the time limit for filing the appeal under Article 108 EPC, must the Board of Appeal treat the appeal as admissible?
c) If either of questions a) and b) is answered in the negative, does that mean that the decision of the Opposition Division maintaining the opposed patent in amended form automatically ceases to have effect, with the result that the patent is to be maintained as granted?
3. Until these questions are decided by the Enlarged Board of Appeals, it is advisable to keep the entities, in whose name an opposition or an appeal is filed, alive.
If you have any questions with regard to this decision, please contact Oliver Tischner.
This IP Alert is for information purposes only and does not constitute legal advice.