Wednesday, April 05, 2017 T 579/16 - Double identity

This appeal is against a decision of the opposition division by which an opposition was deemed non-admissible. In the present case case, the form 2300 indicated "BYK-Chemie GmbH" as opponent, whereas the attached document containing the indication of facts, evidence and arguments mentioned "Einsprechende: BASF Coatings GmbH" just before the heading "EINSPRUCHSBEGRÜNDUNG".

Due to this seemingly contradictory information, the opposition division held the identity of the opponent not to be sufficiently established before expiry of the opposition period, and as a consequence the opposition inadmissible.

In the appeal, the opponent now as appellant essentially argues that since the tick box for 'Multiple opponents' in form 2300 was not checked and the address specified in form 2300 corresponds to that of BYK-Chemie, it was clear that BYK-Chemie was intended to be the opponent and that the mentioning of BASF in the attached document was essentially an clerical error.

However, the board of appeal concurs with the opposition division with respect to the lack of clear identification of the opponent, but does hold the mentioning of BASF to be correctable under Rule 139 EPC first sentence, as requested by the appellant/opponent in both proceedings but for the first time requested after the expiry of the opposition period.

Of interest here is how the board deals with the application of the criteria summarized by G 1/12 whether such a request is allowable, and in particular, whether the request for correction in this particular case was filed "without delay".

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.