Friday, July 01, 2016 T 2365/11: arguments to save your patent that fail without proof

In this opposition appeal the patent proprietor tried some interesting procedure related arguments to save his patent. 
A first line of arguments was based on the fact that in a specific letter another opponent was mentioned than the person who filed the opposition. According to the proprietor: "Since the 'true' opponent was therefore not known, and in any case the original opponent had no legal capacity, this constituted a circumvention of law by abuse of due process according to G3/97, rendering the opposition inadmissible." A second line of arguments was that replacing the chairman of the Opposition Division one day before the oral proceedings resulted in a procedural violation. 
The proprietor was not very successful with these arguments. It seems that the problem was that the proprietor could not prove what he argued - at least he did not provide enough evidence and arguments to show that there was a real circumvention of law and that the new chairman was not well-prepared for the oral proceedings.

Friday, June 05, 2015 T 445/08 - True intentions to be confirmed

This appeal is the referring case of G 1/12, and shows the Board applying the answers of G 1/12.

Catchwords:

• If the notice of appeal is to be considered in the context of the file history, the true intention needs to be confirmed by external facts and evidence at least to prevent that requirements such as those of Article 107 EPC be circumvented (point 9).
• In applying Rule 139 EPC to a party's request to correct a mistake in the notice of appeal in respect of the identity of the appellant, the principle of legal certainly needs to be taken into consideration (point 10).

Background / Summary of Facts and Submissions

I. The appeal lies from the decision of the Opposition Division, posted on 28 December 2007, revoking European patent No 1140330.

II. The (registered) patent owner was Zenon Technology Partnership, The Corporation Trust Company Corporation Trust Centre 1209 Orange Street, Wilmington, DE 19801/US (the patent had been acquired from Zenon Environmental Inc, 845 Harrington Court Burlington Ontario L7N 3P3 Canada, by an assignment registered by the EPO on 30 May 2006).

III. A notice of appeal, dated 8 February 2008 but received on 15 February 2008, was filed, reading:

"European Patent No 1140330 (99955620.2-062)

Zenon Technology Partnership

We hereby give Notice of Appeal (underlined by the Appellant) against the decision of the Examination Division [sic] dated 28 December 2007 to refuse the above patent application [sic]. Cancellation of the decision in its entirety is requested so that the patent may be maintained?.

The name, address and nationality of the Appellant is (emphasis by the Board):

ZENON ENVIRONMENTAL INC

845 Harrington Court

Burlington

Ontario L7N 3P3

Canada

ZENON ENVIRONMENTAL INC is a Canadian Corporation.

In the event that the Board of Appeal wishes to make a decision detrimental to the Applicant's [sic] rights at any time, it is hereby requested that Oral Proceedings be held to discuss the matter."

The procedural steps after the filing of the notice of appeal

IV. On a communication dated 7 March 2008 notifying the parties of the commencement of the appeal proceedings, the Registrar of the Board added the following handwritten statement: "the appeal was filed in the name of ZENON ENVIRONMENTAL INC (underlined by the Registrar). The patentee is here registered as ZENON TECHNOLOGY PARTNERSHIP (underlined by the Registrar). Therefore the patentee is asked to clarify the situation."

V. The Appellant and the Respondent both reacted with letters dated 13 March 2008.

The Appellant wrote "... the appeal should of course have been filed in the name of the current proprietor, i.e. Zenon Technology Partnership (underlined by the Appellant). I apologise for the confusion and respectfully request the correction".

The Respondent requested that the appeal be rejected as inadmissible, as it had been lodged by a legal entity other than the adversely affected (entitled) party.