Thursday, 6 August 2015

T 0562/13 - Missing opponent in appeal



An opponent is allowed by the board to correct his appeal by including his joint opponent. 

The opposition had been filed by two joint opponents. Later, only one of the two files an appeal against the decision of the opposition division. Before the Oral Proceedings, the board brings this issue to the attention of the parties, informing them that 'the admissibility of the appeal (...) is at stake'.


The opponent-appellant submits a request for correction and to include the other opponent in the appeal under Rule 101(2). This request is allowed, even though the request is filed less than 1 month before the Oral Proceedings in the appeal case. 


Reasons for the Decision

1. Admissibility of the appeal

1.1 The notice of appeal against the decision of the Opposition Division, filed with letter of 19 February 2013 in Dutch (together with an English translation), was expressly "on behalf of the opponent, Unilever N.V.".

According to the Representative's statement in its letter dated 27 May 2015 (supra), this notice of appeal was however to be meant to have been filed on behalf of both opponents.

1.2 The Respondent did not comment on this issue.
 
1.3 It is undisputed that in opposition proceedings Unilever N.V. and Unilever PLC acted as joint opponents and were jointly represented by Mr Kan.

1.4 According to the reasoning given in decisions G 3/99 (OJ EPO 2002, 347) and R 18/09 of 27 September 2010, an opposition filed by several persons in common is to be dealt with as an opposition filed by only one party, and such a group of common opponents is to be considered as a single party represented by a common representative (G 3/99, Reasons, 14 and 15). Should such a group of common opponents intend to file an appeal, they can only do so jointly as a single party acting through their common representative (G 3/99, Reasons, 17; R 18/09, Reasons, 5).

1.5 G 3/99 furthermore states (Order, 3) that "[i]n order to safeguard the rights of the patent proprietor and in the interest of procedural efficiency, it has to be clear throughout the procedure who belongs to the group of common opponents or common appellants. If either a common opponent or appellant (including the common representative) intends to withdraw from the proceedings, the EPO shall be notified accordingly by the common representative or by a new common representative determined under Rule 100(1) EPC in order for the withdrawal to take effect" (emphasis added).

1.6 In the present case the EPO has not received any notification by the common Representative of Unilever N.V. and Unilever PLC that Unilever PLC intended to withdraw from the proceedings.

1.7 No arguments or any proof pointing to the contrary have been submitted by the Respondent either.

1.8 The facts and evidence at hand, including the statement by the joint Representative, convincingly lead the Board to the conclusion that it was the Appellants' true intention to file the appeal jointly by both Opponents, i.e. Unilever N.V. and Unilever PLC, thus as joint Appellants.

1.9 However, the notice of appeal does not reflect or express this true intention of the parties on whose behalf it was intended to be filed. In other words, the notice of appeal omits the designation of Unilever PLC. In this respect, a correction under Rule 101(2) EPC as referred to in G 1/12 (OJ EPO 2014, A114) has been requested by the Representative of the joint Opponents.

1.10 Hence, the Board considers it necessary, for both Opponents, Unilever N.V and Unilever PLC, to continue acting through the common Representative before the EPO as joint Appellants, that the file be corrected, in line with G 1/12, so as to mention both Opponents as joint Appellants, i.e. to clarify or introduce what was originally intended in the notice of appeal.

1.11 The appeal is consequently admissible.

 This decision T 0562/13 (pdf) has European Case Law Identifier: ECLI:EP:BA:2015:T056213.20150624. The file wrapper can be found here. Cartoon "Join, or Die" by Benjamin Franklin, obtained from DonkeyHotey via  Flickr under CC BY 2.0 license (no changes made).

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