4.1. Filing of the authorisation

R. 101 EPC 1973 has been redrafted as R. 152 EPC 2000. R. 152(6) EPC, in particular, now reads: "If a required authorisation is not filed in due time, any procedural steps taken by the representative, other than the filing of a European patent application, shall be deemed not to have been taken, without prejudice to any other legal consequences provided for by this Convention." See also the decision of the EPO President dated 12 July 2007 on the filing of authorisations (OJ SE 3/2007, 128, L.1.), and J 8/10 (OJ 2012, 470).

Under R. 152(1) EPC and Art. 1(1) of the EPO President's decision (OJ SE 3/2007, 128, L.1.), professional representatives whose name appears on the EPO's list and who identify themselves as such need file a signed authorisation only in certain specified circumstances (change of representative without notification that the previous representative's authorisation has terminated or where the EPO has doubts about the representative's entitlement to act), T 1204/13 (see also T 548/13).

In T 1105/16 the board stated that, even if Mr K. (a professional representative) were acting as an employee of the patent proprietor, a signed authorisation would not be required since an employee has to file a signed authorisation only if the employee is not a professional representative (see Art. 3 decision of the President, (OJ SE 3/2007, 128, L.1.).

In T 924/17 the new representative filed in due time on 6 June 2017 a signed authorisation, following the invitation by the EPO according to R. 152(2) EPC. The authorisation bore a signature with date of 23 May 2017, i.e. after lodging the notice of appeal. The board stated that there was no requirement for the signature's date to be prior to the filing date of the notice of appeal, let alone a requirement that any procedural step taken before the signature's date be explicitly approved in the signed authorisation. This would be tantamount to requiring proving the existence of a previous informal oral or written authorisation, which entitles the representative to act on behalf of a party ("Bevollmächtigung") and further, this would also be contrary to the intended purpose of R. 152(2) EPC, which is clearly to allow to remedy the missing filing of the authorisation, as it appears implicit and evident that the authorisation generally relates to and encompasses any action by the new representative during specific ongoing proceedings before the EPO.

In J 12/88 it turned out that the former representative of the appellant had acted before the EPO on behalf of the appellant without being instructed to do so and using a forged authorisation. The board considered all these proceedings to be null and void. All fees paid to the EPO on behalf of the appellant never had been due and had to be reimbursed.

In T 850/96 the appellant had alleged that the opposition was not admissible because the signatories of the notice of opposition did not file an authorisation. According to him an employee must declare with the notice of opposition that he acts as a professional representative. Otherwise he must file an authorisation. In the case under consideration both signatories of the notice of opposition were professional representatives. The board held that Art. 1(1) of the decision of the President of the EPO of 19 July 1991 (OJ 1991, 489) stipulates that a professional representative whose name appears on the list maintained by the EPO and who identifies himself as such shall be required to file a signed authorisation only in the circumstances set out in Art. 1(2) and (3) of this decision of the President (now decision of 2007, OJ SE 3/2007, 128, L.1.). In the case at issue, the deficiency had not been the lack of a signed authorisation, but the failure of the signatories of the notice of opposition to identify themselves as professional representatives (see also T 1744/09 citing T 850/96 saying that a professional representative identifying himself retroactively is not precluded).

In T 425/05, the respondent (patent proprietor) requested the board at the start of the procedure to declare the appeal inadmissible, on the one hand because it had been filed at a date when the original opponent (company I) had been dissolved and had therefore ceased to have legal existence, and on the other because the mistake in the notice of appeal could not be a mere clerical error on the part of the professional representative which could easily be corrected, since the representative manifestly could not act on behalf of company F, which had not yet authorised him to do so. The board began by establishing that the representative's authorisation to act on behalf of company I had never been contested or rescinded. It was equally evident that the original opponent, company I, no longer had legal existence, as it had been dissolved and its assets had passed into the hands of company F, its associate and sole shareholder. The board concluded that company F had succeeded company I as opponent, and therefore also as the client of the representative. Thus the appeal filed by the representative, whose authorisation, confirmed in the meantime, had never been rescinded, had been implicitly, but necessarily, filed on behalf of his actual client, company F; the identification of company I as the opponent in the notice of appeal was due to a clerical error which had since been corrected.

In T 267/08 a change of representation had been notified by the new representative together with the notice of appeal. The previous representative had not contacted the EPO to indicate that his authorisation had terminated. The decision of the President of the EPO (OJ SE 3/2007, 128, L.1.) stated that in cases of a change of representation, and where the EPO had not been notified of the termination of the previous representative's authorisation, "the new representative must file, together with the notification of his appointment, an individual authorisation (original and one copy) or a reference to a general authorisation already on file. If he does not, he shall be requested to do so within a period to be specified by the EPO." In the case at issue, the board invited the new representative under R. 152(2) EPC to file an authorisation, as the board had realised that the authorisation failed to name the correct opponent. The new representative sent the authorisation by fax but failed to file the original version. The board stated that the filing of a valid authorisation for the opponent must, of necessity, entail the filing of the original, and a professional representative should know this. The legal consequence of this was that the procedural steps taken by the new representative were deemed not to have been taken (R. 152(6) EPC). Consequently the notice of appeal was deemed not to have been filed and an appeal did not exist.

In T 637/09 the appellant informed the board and the respondent that Mr M, who was already acting as its professional representative, would be joined by Mr S, another professional representative. Mr S's authorisation to represent the appellant was challenged by the respondent at the start of the oral proceedings. The board observed that under R. 152(10) EPC a party may be represented by several representatives acting jointly. Mr S was not required to file a signed authorisation in order to be able to represent the appellant. There was no need to file a (further) authorisation under Art. 1(3) of the decision of the President of the EPO (OJ SE 3/2007, 128, L.1.). The board concluded that Mr S was duly authorised to represent the appellant along with Mr M.

The board in T 1700/11 ruled that if a European representative files an opposition on behalf of a party but fails to file a signed authorisation in due time in response to a request to do so from the board, the opposition is deemed not to have been filed (R. 152(1) and (6) EPC). The board held that this legal fiction resulted in a loss of rights (R. 112(1) EPC) and that an examination of the admissibility of the opposition, which had not been filed according to the legal fiction, was out of the question.

In case J 19/13 the representative who electronically signed the request for grant (EPO Form 1001E) was not a valid signatory for the applicant. A procedural act performed by a non-entitled person is to be treated in the same way as a missing signature. For the electronic filing of a document accompanied by the electronic signature of an unauthorised person, the same principle applies, as confirmed, for instance, in T 1427/09 of 17 November 2009 date: 2009-11-17. Therefore, the request for grant form was to be considered not signed.