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T 314/15 - Wrong/no place of business on notice of appeal: (in)admissible?


In the present case, a notice of appeal by facsimile was received at the EPO on 9 February 2015, carrying at the top of its first page the letterhead "MAN Truck & Bus AG", and below the addressee a line containing various references including inter alia an indication that the letter was written on that same date in Nürnberg, followed by a paragraph designating the number of the above European patent and its underlying application, the name of the patent proprietor and the name of the opponent as "MAN Truck & Bus AG". In the subsequent paragraphs it is declared, with reference to the impugned interlocutory decision, the European patent and its proprietor, that an appeal was filed. A list of requests and a statement concerning the payment of the appeal fee by debit order submitted in the annex completed the letter which was signed by an employee of MAN Truck & Bus AG together with a reference to an EP authorisation 58 1060.1. The letter's footer contains in a left column an indication of inter alia the place of business being München and in a right hand column, a postal address of the company MAN Truck & Bus AG in Nürnberg. In response to a communication pursuant to Rule 101(2) EPC, sent to MAN Truck & Bus AG at its postal address in Nürnberg and stating that the notice of appeal did not contain the address of the appellant and requesting the deficiency be remedied within a period of two months. the address of appellant-opponent was provided, corresponding to the address indicated by opponent in the notice of opposition. It was requested that all correspondence be sent to the Nürnberg postal addres. 
Thus, the notice of appeal of appellant-opponent did not contain the address, contrary to the requirement of Rule 99(1)(a) EPC, but the address of its principle place of business (Sitz) was provided later (together with an address from the company, other than its principle place of business, as address of correspondence). Did the Board consider the appeal admissible in view of Rule 99(1)(a) EPC?

Summary of Facts and Submissions

I. The appellant-proprietor and appellant-opponent 3 appealed against the interlocutory decision of the opposition division, posted 4 December 2014, by which it was decided that European patent No. 1 947 307 in an amended form met the requirements of the EPC.

II. Amongst the three oppositions filed against the granted patent, one was filed by opponent 3, MAN Truck & Bus AG, Dachauer Str. 667, 80995 München. As a correspondence address, a postal address in Nürnberg was indicated.

III. Following the interlocutory decision, a notice of appeal by facsimile was received at the EPO on 9 February 2015, carrying at the top of its first page the letterhead "MAN Truck & Bus AG", and below the addressee a line containing various references including inter alia an indication that the letter was written on that same date in Nürnberg, followed by a paragraph designating the number of the above European patent and its underlying application, the name of the patent proprietor and the name of the opponent as "MAN Truck & Bus AG". In the subsequent paragraphs it is declared, with reference to the impugned interlocutory decision, the European patent and its proprietor, that an appeal was filed. A list of requests and a statement concerning the payment of the appeal fee by debit order submitted in the annex completed the letter which was signed by an employee of MAN Truck & Bus AG together with a reference to an EP authorisation 58 1060.1. The letter's footer contains in a left column an indication of inter alia the place of business being München and in a right hand column, a postal address of the company MAN Truck & Bus AG in Nürnberg.

A corresponding statement of grounds of appeal was received at the EPO on 28 March 2015.

IV. A communication pursuant to Rule 101(2) EPC, dated 16 July 2015, was sent to MAN Truck & Bus AG at its postal address in Nürnberg, stating that the notice of appeal did not contain the address of the appellant and requesting the deficiency be remedied within a period of two months.

V. By letter received at the EPO on 31 July 2015, the address of appellant-opponent 3 was provided, corresponding to the address indicated by opponent 3 in the notice of opposition. It was requested that all correspondence be sent to the Nürnberg postal address.

VI. The Board issued a summons to oral proceedings with a subsequent communication dated 15 February 2019, containing its provisional opinion, and which stated inter alia that the appeal of appellant-opponent 3 appeared admissible. It was also indicated, with reference to the arguments provided up to that stage by appellant-opponent 3, that novelty of the subject-matter of granted claim 1 in view of D1 would require discussion, but that the subject-matter of the claim appeared to lack an inventive step when starting from D18 as the closest prior art in combination with the teaching of D3 (or D2). D1, D2, D3 and D18 are as follows:

[...]

VII. By letter dated 28 February 2019 the appellant-proprietor submitted further comments and auxiliary requests XIX to XXIV.

VIII. Oral proceedings before the Board were held on 28 March 2019 in the absence of the other parties as of right, i.e. opponents 1 and 2, as announced in their respective letters dated 29 January 2019 and 4 March 2019. [...]

IX. The appellant (patent proprietor) requested that the decision under appeal be set aside and the patent be maintained as granted (main request), or that the case be remitted to the department of first instance for further prosecution, or that the patent be maintained in amended form on the basis of one of auxiliary requests [...]. Furthermore, it requested that the appeal of opponent 3 be rejected as inadmissible.

X. Appellant-opponent 3 and opponent 1 (the latter in writing only) requested that the decision under appeal be set aside and the patent be revoked.

XI. Granted claim 1 (main request) has the following wording: [...]

XII. The arguments of the opponents can be summarised as follows.

Admissibility of the appeal of appellant-opponent 3

The opposition and the appeal were filed on behalf of the same legal person. The only doubts concerned the correct address of appellant-opponent 3, as set out in the Board's communication of 16 July 2015 and to which a reply was filed in due time by letter of 30 July 2015, completing the missing information and specifying a different postal address for all correspondence, just as in the preceding opposition proceedings. Moreover, and in line with the case law of the Boards of Appeal, any doubt about the identification of the appellant could be resolved already from a comparison of the letters supplied during the opposition proceedings and the notice of appeal, in particular having regard to the information available from the letterheaded paper on which the notice of appeal was drafted and from the information provided originally with the notice of opposition.

Main request 

[...] .

XIII. The arguments of the appellant-proprietor can be summarised as follows:

Inadmissible appeal of appellant-opponent 3

The notice of appeal was not filed by the party in the opposition proceedings since a different address was indicated on the appeal letter. The correction filed under Rule 101(2) EPC did not meet the two requirements for it being allowed. The deficiency should be a genuine error and its correction showing the true intentions when filing the appeal. Secondly, the indication should be such that the appellant was identifiable at the expiry of the period for filing the appeal. The true intention to file the appeal on behalf of opponent 3 was not proven.

Main request 

[...]

Reasons for the Decision

Admissibility of the appeal of appellant-opponent 3

1. Pursuant to Rule 99(1)(a) EPC, the notice of appeal shall contain inter alia the name and the address of the appellant as provided in Rule 41, paragraph 2(c).

Rule 101(2) EPC further specifies that in case the Board of Appeal notes that the appeal does not comply with Rule 99(1)(a) EPC, it shall communicate this to the appellant and shall invite him to remedy the deficiencies within a period to be specified. If the deficiencies are not remedied in due time the Board of Appeal shall reject the appeal as inadmissible.

2. The notice of appeal of appellant-opponent 3 did not contain the address, contrary to the requirement of Rule 99(1)(a) EPC. This deficiency has however been remedied according to the procedure prescribed in Rule 101(2) EPC. The response to the Board's notification concerning the missing address of appellant-opponent 3 was received two weeks after the dispatch of the notification, so within the two-month period set by the Board and therefore in due time. The indicated address is indeed the same as the address of opponent 3, so that there is no doubt as to the party status of appellant-opponent 3 in the present appeal proceedings (Article 107 EPC).

3. The Board has no doubt about the "true intention" to file the appeal on behalf of opponent 3. The indications in the notice of appeal leave already little room for speculation in this regard. Besides the data identifying the impugned decision, the patent in suit, the names of the patent proprietor and that of opponent 3, the business place of the company can also be found in that letter ("Sitz der Gesellschaft: München"). The letterhead, with which the notice of opposition was filed is the same as for the notice of appeal. Despite the missing address for the business place in Munich and the indication of an address in Nürnberg, which might at first sight have triggered the assumption that two different legal persons could be involved, the response of appellant-opponent 3 to the Board's notification pursuant to Rule 101(2) EPC removed any such doubt, completing the missing address of the business place and further confirming that the other address in Nürnberg is also, just as in the preceding opposition procedure, to be used for any correspondence in the appeal procedure. Finally, the doubts raised by the appellant-proprietor in regard to the possible existence of a second legal person, with the same name, were not supported by any evidence.

4. The Board is satisfied that all other requirements for the admissibility of the appeal of appellant-opponent 3 have been met. The appellant-proprietor also did not raise any further objections in this regard.

The appeal of appellant-opponent 3 is thus admissible.

5. The appeal of the appellant-proprietor is also admissible, which has not been contested.

6. - 22  [...]

Order
For these reasons it is decided that:

1. The decision under appeal is set aside.

2. The patent is revoked.

This decision T 314/15 (pdf) has European Case Law Identifier: ECLI:EP:BA:2019:T031415.20190328The file wrapper can be found here. Left photo ''rathaus, Marienplatz, Munich" by jay8085 obtained via Flickr under CC BY 2.0 license (no changes made).

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