G1/13, a decision of the Enlarged Board of Appeal has recently been published by the European Patent Office (EPO). This decision relates to the status of an opponent of a European patent where the opponent enters into and is then subsequently brought out of administration.
In particular, the following three questions were referred to the Enlarged Board of Appeal:
“1. Where an opposition is filed by a company which is dissolved before the Opposition Division issues a decision maintaining the opposed patent in amended form, but that company is subsequently restored to the register of companies under a provision of the national law governing the company, by virtue of which the company is deemed to have continued in existence as if it had not been dissolved, must the European Patent Office recognize the retroactive effect of that provision of national law and allow the opposition proceedings to be continued by the restored company?
2. Where an appeal is filed in the name of the dissolved company against the decision maintaining the patent in amended form, and the restoration of the company to the register of companies, with retroactive effect as described in question 1, takes place after the filing of the appeal and after the expiry of the time limit for filing the appeal under Article 108 EPC, must the Board of Appeal treat the appeal as admissible?
3. If either of questions 1 and 2 is answered in the negative, does that mean that the decision of the Opposition Division maintaining the opposed patent in amended form automatically ceases to have effect, with the result that the patent is to be maintained as granted?”
With regard to question 1, the Board decided that provided all of these events take place before a decision of the Opposition Division maintaining the opposed patent in amended form becomes final, the EPO must recognize the retroactive effect of the national law and allow the opposition proceedings to be continued by the restored company.
Turning now to question 2, the Board ruled that if a valid appeal is timely filed against the decision in the name of the ‘non-existent’ opponent company, and if the company is restored to existence with retroactive effect after the expiry of the time limit for filing the notice of appeal, the Board of Appeal must treat the appeal as admissible.
As neither of questions 1 and 2 was answered in the negative, question 3 was not considered.
For the full decision, please click here.
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