3.2. Concept of legal incapacity (Rule 142(1)(a) EPC and Rule 142(1)(c) EPC)

The EPC does not define the concept of "legal incapacity", which is assessed differently according to whether the person concerned is the applicant or patentee or a professional representative: In J xx/xx (=J 900/85, OJ 1985, 159) and J ../87 (=J 903/87, OJ 1988, 177) the Legal Board held that the capacity of the applicant or patent proprietor to carry out legal transactions relating to his application or patent must be determined in accordance with the relevant national law because the interest in the patent application or the patent is an interest in property (see Art. 74 and Art. 2(2) EPC; see also J 49/92). On the other hand, J xx/xx (=J 900/85, OJ 1985, 159) states that a uniform standard of judging legal incapacity of representatives shall apply in order to avoid differences in the application of R. 90(1)(c) EPC 1973 (R. 142(1)(c) EPC) depending on the nationality of domicile of the representative.