T 1755/14 26-07-2018

1. Admissibility of the appeal

1.1 The opposition was filed on behalf of SymKG and the opponent was referred to as "SymKG" throughout the opposition proceedings. The respondent challenged the admissibility of the appeal filed by SymAG, arguing that the requirements of Article 107 EPC were not met since SymAG had not been a party to the opposition proceedings.

1.2 Since no other issues concerning the admissibility of the appeal have been raised by the respondent or identified by the board, the admissibility of the appeal depends solely on the identity of the opponent. If SymAG was recognised as the opponent, it would be adversely affected by the decision under appeal and its appeal would be admissible.

2. Universal succession from SymKG to SymAG

2.1 For both the transfer of the opponent status and the requested correction of the opponent's name the appellant has relied on the universal succession which took place when SymKG was dissolved. As proof of the universal succession, the appellant filed a notarial declaration with its letter of 25 April 2013 during opposition proceedings (see Facts and Submissions, point III above ). In the appeal proceedings, the appellant filed further evidence and arguments in support of its position that the universal succession occurred through "Anwachsung" (accrual) under § 738 BGB (Bürgerliches Gesetzbuch; German Civil Code). While the universal succession was disputed by the respondent, in its communication of 22 May 2018 the board gave its preliminary view that it considered, regardless of the specifics of German law, that there was a universal succession in view of the case law of the boards of appeal (reference was made, in particular, to T 2357/12).

2.2 In its letter of 24 July 2018 and during oral proceedings before the board, the respondent acknowledged the universal succession but emphasised that it had taken place, and that SymKG had ceased to exist, on 1 October 2010. In a joint notification, filed as Annex G with the respondent's letter of 24 July 2018, SymAG and Symrise Verwaltungs GmbH declared that SymKG had been dissolved and SymAG had taken over the business of SymKG with all assets and liabilities by accrual ("Anwachsung"). The notification was notarised on 1 October 2010 (Annex G, last two pages). The appellant, who had always relied on the universal succession, argued that the public could not have taken note of the universal succession until after it had been published on 8 October 2010. However, the appellant itself argued in the grounds of appeal that the universal succession had taken place ipso iure (i.e. that it had occurred by law as an automatic effect of the dissolution of SymKG and not by means of any registration). The question of whether and when the succession became known to the public is a different issue which may have a bearing on the request for correction of the error (see point 4.4 below).

2.3 The board is therefore satisfied that a universal succession from SymKG to SymAG took place on 1 October 2010.

3. Transfer of opposition

3.1 Since the universal succession took place on 1 October 2010, SymKG ceased to exist on the same date. As the opposition filed by SymKG was not filed until 8 October 2010, it appears that SymKG did not exist when the opposition was filed and that, as a consequence, no opposition status was acquired by SymKG which could be transferred in the course of pending opposition proceedings.

3.2 However, as the request for correction of the error is allowable (see below point 4), the opposition and the appeal are admissible regardless of the transfer of opposition, and no final decision is needed on the allowability of the transfer of opposition.

4. Correction of an error under Rule 139 EPC

4.1 After it was held in G 1/12 (OJ EPO 2014, A114) that the name of an appellant may be corrected under Rule 139 EPC, it was clarified in subsequent decisions that the name of an opponent in opposition proceedings may also be corrected under said provision (T 615/14, Reasons 1.4; see also T 2045/09 and T 1551/10).

4.2 Referring to J 8/80 (OJ EPO 1980, 293) and other decisions, the Enlarged Board in G 1/12 (Reasons 37) summarised the principles for corrections under Rule 139, first sentence, EPC. These are, in particular, that (i) the correction must introduce what was originally intended, (ii) the requester bears a heavy burden of proof and (iii) a request for correction must be filed without delay.

4.3 With respect to the first principle, it must be demonstrated that the requested correction expresses the true intention of the person on whose behalf it was filed. The correction of an error may not be used to enable a person to give effect to a change of mind or subsequent development of his plans (J 8/80, Reasons 4 and 6).

4.4 SymKG, the party wrongly named as the opponent in the notice of opposition, was no longer in existence when the opposition was filed. The only successor to SymKG (universal successor) was SymAG. All documents concerning the dissolution of SymKG and the universal succession by SymAG, including Annex G, were accessible to the public (a fact which was confirmed by the respondent during oral proceedings). They became public on 8 October 2010 or, at any event, on 13 October 2010, when the time limit for filing the opposition expired.

4.5 There is nothing to indicate that the true intention was to file the opposition in the name of a person other than the only successor of the person who originally instructed its representative to file the opposition. The board is convinced that the representative (who may not have been aware of the succession on 8 October 2010) had intended to file the opposition on behalf of the entity which had acquired all the assets and liabilities of the entity that gave him the instruction to file the opposition (see also T 15/01, OJ EPO 2006, 153, Reasons 15).

4.6 The facts of the present case are almost the same as in the case underlying T 1551/10 (where the opposition was filed in the name of an entity which had been deleted from the commercial register before the opposition was filed but where the time span between the deletion and the filing of the opposition was more than two months). The board in T 1551/10 found that on the basis of the commercial register data the opponent could clearly and unambiguously be identified before the end of the opposition period as the universal successor of the deleted entity and that the name of the opponent could be corrected accordingly under Rule 139 EPC (Reasons 1.2, 1.3). The board intends not to deviate from T 1551/10.

4.7 The respondent argued that the facts in the present case differed from T 1551/10 insofar as not only SymAG but four other companies having "Symrise" as part of their company name and being registered at the same seat of business as SymKG and SymAG could have filed an opposition under Article 99 EPC ("any person"). In the board's judgment, this argument and the appellant's counter-argument that only SymAG was active on the market are not relevant, because an unambiguous choice was made to file the opposition on behalf of SymKG and not on behalf of any other entity of the Symrise group of companies. Since SymAG was the universal successor to SymKG, the true intention could not have been to file the opposition in the name of any other Symrise entity.

4.8 The respondent further relied on case law denying the admissibility of appeals filed by entities which ceased to exist before the appeal was filed (T 525/94). In contrast to the present case, there was no indication of any legal successor to the liquidated party named as the appellant in T 525/94. While an entity which has ceased to exist cannot be a party to proceedings before the EPO, it needs to be established on a case-by-case basis whether there is a successor to that entity (see, for example, T 353/95 and T 2334/08). In the present case, there is no doubt about the existence and identity of a legal successor. Moreover, a correction under Rule 139, first sentence, EPC means that SymAG is deemed to be named as opponent ab initio (see J 27/96, Reasons 3.2; J 3/01, Reasons 7), which means that the opposition was not filed by a non-existent legal entity.

4.9 In order to prove the existence of the mistake concerning the opponent's name and what the correction should be, the appellant relies on extracts from the commercial register and another publicly available document filed with the commercial register authorities (Annex G). These documents were also filed by the respondent (see Facts and Submissions, points VI and X above). The board is satisfied that the heavy burden of proof required by the case law (principle (ii) as referred to above in point 4.2) is met.

4.10 As far as the last principle is concerned (timely request for correction; principle (iii) in point 4.2 above), the board notes that the issue of the opponent possibly having the wrong name only arose after the parties were summoned for oral proceedings before the opposition division (see Facts and Submissions, point III above). The issue was then discussed and decided during oral proceedings. The board is therefore satisfied that the request for correction was filed without delay in view of G 1/12 (Reasons 37, alinea (d)). The present case clearly differs from T 603/15, where the request for correction was filed four years after the mistake concerning the name of the opponent became apparent (T 603/15, Reasons 3.3).

4.11 The board thus came to the conclusion that the request for correction of the opponent's name can be allowed in view of the principles established under Rule 139 EPC.

5. Conclusion

5.1 As the correction of the opponent's name to SymAG is allowable under Rule 139 EPC, SymAG was the opponent throughout the opposition proceedings and SymAG was adversely affected by the decision to refuse the opposition as inadmissible. With respect to the admissibility of the opposition and the appeal, no issues other than those related to the non-existence of SymKG at the date of filing of the opposition have been raised by the respondent or are apparent to the board. Consequently, both the opposition and the appeal filed by SymAG are admissible (see point 1.2 above).

5.2 The decision under appeal did not address the grounds for opposition (Articles 100(a), (b) and (c) EPC), and the arguments of the parties in the appeal proceedings related solely to admissibility of the opposition and the appeal. As indicated in its communication of 22 May 2018, the board finds it appropriate to remit the case to the opposition division for examination of the grounds for opposition.