BOARDS OF APPEAL
Information from the Enlarged Board of Appeal
Referrals by boards of appeal
I. In decision J 3/95 dated 28 February 1997, the Legal Board of Appeal referred the following point of law to the Enlarged Board of Appeal under Article 112(1)(a) EPC:
(Translation)
1. In the context of the European Patent Convention, what administrative or jurisdictional measures should be taken in response to requests based on the alleged violation of a fundamental procedural principle and aimed at the revision of a decision taken by a board of appeal with the force of res judicata?
2. If necessary, should it be required that these be entered in the Register of European Patents?
The case is pending under Ref. No. G 1/97.
II. In decision T 742/96 dated 9 June 1997, Technical Board of Appeal 3.2.5 referred the following point of law to the Enlarged Board of Appeal under Article 112(1)(a) EPC:
(Language of proceedings)
Are the boards of appeal, in application of the principle of good faith, bound to notify the appellant of a missing appeal fee when the notice of appeal is filed so early that the appellant could react and pay the fee in time, even if there was no indication - either in the notice of appeal or in any other document filed in relation to the appeal - from which it could be inferred that the appellant would, without such notification, inadvertently miss the time-limit for payment of the appeal fee?
The case is pending under Ref. No. G 2/97.
III. In decision T 301/95 dated 27 July 1997, Technical Board of Appeal 3.2.5 referred the following point of law to the Enlarged Board of Appeal under Article 112(1)(a) EPC:
(Translation)
1. Is an opposition filed by an indirect representative ("straw man") admissible?
2. If the answer to 1 is no, to what extent does the objection to a "straw man" have to be investigated if circumstances are cited raising reasonable doubt that the opponents are not acting in their own interests?
The case is pending under Ref. No. G 3/97.
IV. In decision T 649/92 dated 2 July 1996, Technical Board of Appeal 3.3.4 referred the following point of law to the Enlarged Board of Appeal under Article 112(1)(a) EPC :
(Language of proceedings)
1. Is a respondent patentee entitled to challenge the admissibility of an opposition on grounds relating to the identity of an appellant opponent during the course of the appeal, where no such challenge to admissibility had been raised before the opposition division ?
2. If the answer to Question 1 depends on the particular circumstances, what are the legal principles governing the circumstances that the Board of Appeal should take into account in assessing whether a challenge to the admissibility of the opposition is allowable at the appeal stage ?
3. If the answer to Question 1 can be yes, how is the requirement of Article 99(1) EPC to the effect that any person may give notice of opposition to the European Patent to be interpreted, and in particular should it be interpreted to the effect that anybody may give notice of opposition in his own name, but not in the name of a nominal opponent, that is an opponent who merely lends his name for the proceedings while allowing the proceedings to be controlled by another ?
4. If the answer to Question 3 means that Article 99 EPC precludes a nominal opponent, in what circumstances, if any, can a suspected nominal opponent be required to provide evidence to establish that the opposition is genuinely his own, and what evidence can such a suspected nominal opponent be required to give to prove that he is a genuine opponent ?
5. If the answers to the above questions involve a restriction on the right to challenge admissibility, is such restrictive view to be applied immediately in all pending proceedings ?
The case is pending under Ref. No. G 4/97