2.2. Universal succession

In T 349/86 date: 1988-04-29 (OJ 1988, 345) the board referred to R. 60(2) EPC 1973, which stated that in the event of the death of the opponent the opposition proceedings could be continued by the EPO of its own motion, even without the participation of the heirs. According to the board this may be read as definitely stating that an opposition may be transferred to a deceased opponent's heirs and, by analogy, to a company absorbing the opposing company by merger or takeover (see also T 1091/02 date: 2004-07-23, OJ 2005, 14). In G 4/88 the Enlarged Board confirmed that the opposition may be transferred to the opponent's universal successor in law (point 4 of the Reasons). In T 475/88 the board held that the appeal was admissible because the opponent status had been transferred to the company that filed the appeal as a result of its merger with the initial opponent.

In T 2357/12 the board was concerned with a situation in which the transfer of all assets of an enterprise had been made whose legal entity had subsequently been dissolved. The board noted that "universal succession" as an exception to R. 22(3) EPC was a concept of procedural law under the EPC and was to be construed autonomously by the EPO, independently of national law. Under the case law of the boards of appeal, the main considerations for acknowledging that a universal succession has taken place were legal certainty as to the person of the successor and the need to avoid a legal vacuum. The transfer of all assets of an enterprise, immediately followed by its dissolution as a legal entity, could therefore constitute universal succession. The board concluded that although there was no genuine concept of "universal succession" under the national law in question (State of Delaware), the case at hand was to be considered one of universal succession under the EPC. See also T 1755/14 for a case in which universal succession occurred through "accrual" ("Anwachsung" under German law).

In T 660/15 the board agreed with T 2357/12 that the concept of universal succession had to be interpreted autonomously, i.e. independently of national law. An essential point for accepting universal succession was that there was only one transferee possessing all the assets and the former opponent had ceased to exist, so that no legal uncertainty could arise about who the opponent was. See also T 1575/17, which was a case of universal succession as per the case law of the boards of appeal (G 4/88, T 475/88 and T 2357/12) because both the change of the company's legal form and the merger with another company had given rise, each time, to a single legal entity which remained the owner of all the opponent company's assets and liabilities.

In T 659/92 (OJ 1995, 519) there had been no universal succession. There was nothing to indicate that the opponent's business assets had been contractually transferred. The board concluded that a unilateral declaration by the owner of rights that he had transferred industrial property rights and opponent status in proceedings relating to a particular right could not of itself effect universal succession by transfer of business assets.

In T 531/11 the board held that an excerpt from a purchase contract stating that a company had been acquired "through sale of individual business assets" showed that under the terms of the contract there has been no universal succession.