4. Interruption of proceedings under Rule 142 EPC
4.4. Determining legal incapacity of the applicant or patent proprietor for the purpose of Rule 142(1)(a) EPC
In J ../87 (=J 903/87, OJ 1988, 177) the board ruled that a brief medical certificate attesting that the applicant had been in a state of physical and mental exhaustion and depression, was not sufficient to establish incapacity within the meaning of R. 90(1)(a) EPC 1973 since the certificate said nothing about the seriousness and duration of this condition. Cf. T 1680/13.
In J 49/92 the Legal Board had no evidence – such as a medical certificate – to suggest that the applicant's health, according to German legal practice, was in such a condition as to exclude the rational exercising of his will, since he had still managed to transfer the fees for the application, even if they had been sent by mistake to the German Patent Office instead of the EPO.
- J 2/22
Abstract
In J 2/22 the Legal Board dealt with the legal (in-)capacity of the appellant, since the notification of the Receiving's Section communication of 21 November 2019 was null and void if the appellant – who was not properly represented – was legally incapable.
The Legal Board recalled that legal incapacity of a person meant that such a person is suffering from a disturbance of their mind which makes them unable to form the necessary voluntary intention to carry out legal transactions binding upon them. In the context of the procedural system of the EPC, this also means that they cannot act on their own in proceedings before the EPO. Moreover, the Legal Board held that the standards for assessing legal capacity regarding natural persons should be the same as those regarding professional representatives, as only unified standards according to the autonomous law of the EPC could guarantee equal treatment of the parties, as an essential element of fair trial.
According to the Legal Board, legal (in-)capacity was to be assessed ex officio, at any time during the proceedings, and it required a reliable medical opinion. There was a general presumption in favour of legal capacity of a natural person appearing as party or representative before the EPO. However, this presumption no longer held if there were indications to the contrary, in particular from this person's conduct in the proceedings. In such a case, a person could not simply be further treated as legally capable, despite indications to the contrary, by putting the burden (only) on them to provide evidence to prove their own legal incapacity.
The Legal Board further stated that in the event of legal incapacity of an applicant or proprietor, proceedings before the EPO were to be interrupted, and were to be resumed with the person authorised to continue. The interruption occurred ex lege, when the conditions for it were met. The decision on and the registration of such interruption were only declaratory.
The Legal Board then turned to the issue of competence to declare an interruption. It held that the competence of the boards under Art. 21(1) EPC for appeal proceedings, including decisions on the merits and ancillary procedural matters, was not affected by the competence of the Legal Division for decisions as to entries in the European Patent Register under Art. 20 EPC. The Decision of the President of the EPO concerning the responsibilities of the Legal Division of 21 November 2013, OJ 2013, 600, did not transfer any powers and competences from the Boards of Appeal to the Legal Division on the basis of R. 11 EPC, but only concerned the allocation of functions between the first-instance departments. From the mere fact that the Legal Division was responsible for entries in the European Patent Register regarding the dates of interruption or resumption of proceedings pursuant to R. 142 EPC, it could not be derived that the Legal Division would also be responsible for the decision to interrupt.
Regarding the continued/renewed proceedings, the Legal Board stated that when proceedings were declared null and void (and interrupted) by a board, because of legal incapacity of an appellant, the case was to be remitted to the department of first instance, for the first-instance proceedings to be resumed and continued/renewed with a representative to (be appointed and) act on the appellant's behalf, and with further notifications also to be made to that representative. The concept of the appointment of a representative for legal proceedings was inherent in the system of the EPC, and could, as a matter of principle, be applied to any case such as the present one, where a representative was essential to guarantee the participation of a legally incapable person as party and thus a fair trial. Such an appointment by the administrative or judicial authority in the proceedings is also in accordance with the principles of procedural law generally recognised in the contracting states to the EPC.