T 0384/15 Circumvention via straw man must always be proven
In this opposition appeal case, the decision to reject the opposition was
appealed by the opponent, Santorelli SA.
In appeal, a notice of intervention was filed by a first intervener, Bose GmbH. The
proprietor requested that the intervention be found inadmissible for the reason
that Santarelli was a straw man acting on behalf of Bose, meaning that the
opponent and the intervener were one and the same. Bose GmbH denied any involvement
in the opposition prior to its intervention, which was held to be admissible. Subsequently,
a second intervener Bose Ltd filed a notice of intervention.
The patent proprietor requested that the original opposition be held
inadmissible and, if the Board did not accede, further requested that a
question be referred to the Enlarged Board: "If evidence clearly indicates that a strawman opponent is acting
on behalf of a party who intervenes in opposition proceedings, is the
involvement of the opponent to be regarded as circumventing the law by abuse of
procedure (cf. G 3/97 and G 4/97), the consequence of which being that the
opposition is inadmissible?"
The Board agreed with the proprietor that any intervener must be a
different party from the opponent in order to be a third party in the meaning
of Art 105(1), and that even when the interveners are
"third parties", it
still has to be considered whether there has been an attempt by the opponent
and/or interveners to circumvent the law by abuse of process and thus whether
there are grounds for holding the opposition and/or interventions inadmissible.
The Board concluded that the three opponents were separate parties and
was able to decide on the available facts that the interventions were
admissible and thus also the original opposition, given that the proprietor had
submitted no proof that the interveners were in fact the principals instructing
the original opponent.
The request for a referral to the Enlarged Board was denied.