Wednesday, January 09, 2019 T 384/15 - Intervention another company from the same group as the opponent: admissible?

Opposition appeal proceedings were pending with a single opponent, Santarelli SA. Early during the appeal proceedings, a first intervention was filed by a first assumed infringer, Bose Gmbh. At a later moment during ther appeal proceedings, a second intervention was filed by a second assumed infringer, Bose Limited. The proprietor objected to the interventions by Bose Gmbh and Bose Limited as both belong to the same group as Santarelli SA, and submitted that these two intervenors were not third parties and that the filed interventions were abuse of law, as a consequence of which the interventions (as well as the opposition) should be considered inadmissible. The Board did not agree. The Board and that the interveners are "third parties", and also that the invoking Article 105 EPC had not been an attempt by the opponent and/or interveners to circumvent the law by abuse of process. The Board held the opposition and both interventions admissible.

Friday, June 29, 2018 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.

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.