5.2.3 Distinction between party to proceedings and accompanying person

In T 2036/12, the opposition division had refused to permit Mr S. to make submissions on the basis that they had to be considered those of a "technical expert". The board rejected its line of argument, observing that G 4/95 concerned "accompanying persons", i.e. people who were not parties to the proceedings and generally not entitled to make their own submissions as a matter of right, whereas Mr S., as the proprietor's managing director with the power to sign for it, was a direct party to the proceedings. It made no difference that a professional representative had likewise been present; as a party to the proceedings, he was entitled in his own right to make submissions in support of his case. The opposition division's refusal to permit his submissions was thus a breach of the right to be heard under Art. 113(1) EPC.

In T 621/98, during oral proceedings, the board was faced with the question of whether the patent proprietor, who was professionally represented, needed to announce in advance his intention to make submissions during the proceedings, pursuant to G 4/95. The board ruled that the patent proprietor was a party to the proceedings and as such was not to be treated as an accompanying person. As a party to the proceedings he had a right to take part in them.

In T 89/04 Mr D. was a vice president of the company OpenTV. Since the company ACTV, Inc. was recorded in the Register of European Patents as the patentee, OpenTV, which was a different legal person, was not a party to the proceedings in accordance with Art. 99(4) EPC 1973 and Art. 107, second sentence, EPC 1973. Mr D. was considered to be a person accompanying the representative.

In T 475/01 the board took the view that neither the EPC nor the above Enlarged Board decision could be held to imply that a party that represented itself in proceedings was to be treated differently to a professional representative in respect of oral submissions by accompanying persons.

In T 754/08, in the respondent's/patent proprietor's view, since Mr R. was the former patent attorney of the appellant in this case, his submissions would be those of a professional representative. Since he was not authorised to act in the latter function, he should not be allowed to speak during the oral proceedings. The board decided that the conditions set out in the decision G 4/95 were applicable to any accompanying person. Therefore, there was no reason to exclude a former European patent attorney as such. Since the conditions were met the board saw no reason not to allow Mr R. to make oral submissions during the oral proceedings.

In T 1687/08, at oral proceedings held before the opposition division on 25 February 2008, the division had refused Mr J permission to speak on behalf of the patent proprietor/ appellant. The board found in the case at issue that the requirements for representation by a legal practitioner were fulfilled, i.e. that the letter dated 16 January 2008 represented an authorisation which established that Mr J was entitled to represent the patent proprietor. The board stated that from the minutes of the oral proceedings and the decision under appeal it was apparent that the opposition division had not considered Mr J to be a legal practitioner under Art. 134(8) EPC. Instead, it had treated him as an accompanying person, and therefore applied the requirements set out in decision G 4/95. Since the patent proprietor had requested Mr J's participation in the oral proceedings as a legal practitioner under Art. 134(8) EPC, not as an accompanying person within the meaning of decision G 4/95, the division's decision not to allow him to speak had been taken under the wrong legal provision.

In a communication the board in T 8/13 stated that the request to allow another person who was not a professional representative to make submissions on behalf of the appellant (opponent) during the oral proceedings would not be allowable in view of the conditions set by Art. 134 EPC and having regard to decision G 4/95. Ms. L was neither a representative according to Art. 134 EPC nor was she presented as a technical expert to be heard on a technical question. The personal involvement with the case or her relationship to the appellant also did not qualify Ms. L to have made submissions as an accompanying person in accordance with the conditions set out in G 4/95.

In T 1212/02 the board held that an employee of the opponent's holding could make submissions only as a person accompanying its professional representative and so subject to the conditions set out in G 4/95, even though he worked alongside the professional representative on the opponent's affairs in the holding's patent department.