2.2.4 Identity of opponent and correction of opponent's name
According to T 1551/10, for an opposition to be admissible, the opponent has to be identifiable by expiry of the opposition period (T 25/85, OJ 1986, 81), and provided this is the case, wrong information can be corrected (T 219/86, OJ 1988, 254; T 870/92 date: 1997-08-08). Extracts from the commercial register showed that Swisscom (Schweiz) AG was the (sole) universal successor in title to Swisscom Mobile AG, which was originally named as the opponent, although it had already been removed from the register before the opposition was filed. It was not apparent that any of Swisscom Mobile AG's business assets had been taken over by any other legal entity. Therefore, Swisscom (Schweiz) AG was clearly and unambiguously identifiable as the opponent by the time the opposition period ended. Procedural statements mistakenly made in the name of a deceased party or of a legal person that no longer existed following a merger could be regarded as having been made in the name of their universal successor in title (T 15/01, OJ 2006, 153). The mistake in the opponent's name could therefore be corrected under R. 139 EPC. See however T 1226/13 in which the board requested additional evidence concerning the true intention of the person on whose behalf the opposition was filed.
In T 1269/11 the board held that both R. 77 and R. 139 EPC were available in principle to rectify errors in the name of the respondent (opponent) as given in the notice of opposition (by analogy with G 1/12, OJ 2014, A114, concerning correction of the wrong identification of the appellant and summarised in chapter V.A.2.5.2 a)). However, there was not sufficient evidence to allow a correction in this case.
The availability of R. 139 EPC to correct the name of the opponent (irrespective of the question of identifiability of the opponent, which was not discussed) was confirmed by T 615/14 as follows. A request to correct the designation of the opponent in the notice of opposition is allowable under R. 139, first sentence, EPC provided that it complies with the principles endorsed in G 1/12 (OJ 2014, A114), in particular that the correction must introduce what was originally intended when filing the notice of opposition, that it does not give effect to a change of mind or development of plans and that it represents the opponent's actual rather than ostensible intention. The original intention at the time of filing the opposition can also be established on the basis of evidence submitted after the expiry of the opposition period. See also T 603/15 and also T 1226/13, which emphasises the heavy burden of proof required (with reference to G 1/12, OJ 2014, A114 and J 8/80, OJ 1980, 293).
In T 2254/14, the board first of all investigated whether the opponent had been duly identifiable on expiry of the opposition period and found that the particulars provided had indeed been inconsistent in that the trading name given in the notice of opposition (EPO Form 2300) could be associated to a different legal person from the one named in the attached statement of grounds. Citing G 1/12 (OJ 2014, A114), however, it held that this could be corrected under R. 139 EPC. The board considered that the criteria set out in that decision, in particular in point 37 of the Reasons, were met.
In T 579/16 too, the board, having first of all found that the opponent had not been clearly identifiable from the documents submitted prior to expiry of the opposition period, confirmed that an opponent's name could be corrected under R. 139, first sentence, EPC where the conditions set out in G 1/12 (OJ 2014, A114) were met. Drawing on the wording of Section 121(1) of the German Civil Code, it interpreted the condition that the correction request be filed "without delay" to mean that it had to be filed "without culpable delay" ("ohne schuldhaftes Zögern"), i.e. how promptly a requester could reasonably be expected to act had to be assessed subjectively rather than objectively. The answer therefore depended not only on any special circumstances of the specific case having to be taken into account in line with J 16/08 but also on the knowledge and personal perspective of the person making the request. The board held that the request at issue had been made without delay. For a case where the request for correction was rejected for the reason that condition d) of point 37 of the Reasons in G 1/12 was not considered to be fulfilled, see T 603/15.
This line was also taken in T 1755/14, where the entity in the name of which the opposition was filed ceased to exist before this filing so that no opposition status was acquired which could be transferred as requested. However, having examined the requirements established in G 1/12 (point 37 of the Reasons), the board considered that the request for correction of the error was allowable.
In T 1638/14 the notice of opposition was not accompanied by form 2300 and the information regarding the opponent's identity in the header and the body text of this notice was contradictory. In the board's view, by the end of the opposition period, the opponent had not been unambiguously identified. The opponent's request for correction under R. 139, first sentence, EPC was refused as the conditions set out in G 1/12 (OJ 2014, A114) were not fulfilled.