tag:blogger.com,1999:blog-8990057754240336385.post4630862725503682108..comments2024-02-27T09:18:36.160+01:00Comments on DeltaPatents Case Law blog: T 2365/11: arguments to save your patent that fail without proofDeltaPatentshttp://www.blogger.com/profile/07830354704918972593noreply@blogger.comBlogger1125tag:blogger.com,1999:blog-8990057754240336385.post-85373313217391332042016-07-10T19:50:04.265+02:002016-07-10T19:50:04.265+02:00The proprietor is just awkward, that’s all. The mo...The proprietor is just awkward, that’s all. The more so since he obtained that the ground of opposition under Art 100,b) does not prejudice the maintenance of his patent.<br /><br />It is not the first time that an opposition is filed by a third party, especially by a professional representative. It is however strange that the name of the real opponent surfaced during the proceedings. It is somehow surprising that a member of a well- known firm or representatives gives away, for no reason at all, the name of the principal, i.e. the true opponent. This should not have happened and can be considered as not very good, but as the EBA said this is a matter of relationship between the strawman and the third party which does not want to appear: The question whether the opponent's acts accord with the intentions or instructions of the principal is relevant only to the internal relationship between the latter and the opponent, and has no bearing on the opposition proceedings, cf. last sentence of 1st § of point 2.1 of G 3/97.<br /><br />When one thinks back, the reason why the EBA accepted the filing of an opposition is that the principal is at the mercy of the strawman. If the strawman withdraws the opposition, the principal cannot substitute as “The opponent does not have a right of disposition over his status as a party”, cf. 1st sentence of point 2.2 of G 3/97, or G 2/04. <br />It does not matter in which way one looks at the matter, the argument of the proprietor in this respect was ill founded and correctly dismissed by the BA. <br /><br />This decision is also interesting for another reason, namely whether the last minute change of a member of the oral proceeding can be considered as a substantial procedural violation? The answer is negative. <br /><br />On the one hand, it confirms established case law that a change of opinion of a first instance division at oral proceedings in relation to that expressed in the annex to the summons cannot not be considered as a substantial procedural violation. The opinion expressed in the annex to the summons is purely provisional. See for example T 1758/05, T 1887/12, or T 23781/12.<br /><br />On the other hand, the change of a member of the opposition division at the oral proceedings can neither be considered a substantial procedural violation, cf. T 160/09. In T 1207/09, the BA even considered that the applicant had no right to know the reasons why a change in the composition of the division took place. This applies mutatis mutandis to an opposition division.<br /><br />In the present case, the new chairman wanted to explain the change in composition of the division. He should have known better. But the BA has put things back in place.Anonymousnoreply@blogger.com