Referral to the Enlarged Board of Appeal for T445/08

The Board of Appeal in charge of T445/08 has decided to refer four questions to the Enlarged Board of the Appeal of the EPO with a view to clarifying if and when a request for correction of an appellant’s name in a notice of appeal should be allowed.

In this case, the patent had been revoked in opposition proceedings and a notice of appeal was filed against the decision to revoke the patent. In February 2007, the transfer of the opposed patent from “ZENON ENVIRONMENTAL INC.” to “Zenon Technology Partnership” was recorded at the EPO. However, the notice of appeal filed in February 2008 was filed on behalf of “ZENON ENVIRONMENTAL INC.”, the previous proprietor of the EP patent.

When notified of the situation, the patentee filed a request for correction of the appellant’s name indicated in the notice of appeal so that the name be corrected to “Zenon Technology Partnership” and, in response, the opponent argued that the request for correction should be rejected. In this situation, if the EPO decides to reject the request, the appeal will then be found inadmissible because it was not filed by a party entitled to appeal.

When the Board of Appeal considered whether the request for correction should be allowed or rejected, they found conflicting case law on that point and thus decided to refer the following questions to the Enlarged Board of Appeal:

1. When a notice of appeal, in compliance with Rule 99(1) (a) EPC, contains the name and the address of the appellant as provided in Rule 41(2) (c) EPC and it is alleged that the identification is wrong due to an error, the true intention having been to file on behalf of the legal person which should have filed the appeal, is a request for substituting this other legal or natural person admissible as a remedy to "deficiencies" provided by Rule 101(2) EPC?
2. If the answer is yes, what kind of evidence is to be considered to establish the true intention?
3. If the answer to the first question is no, may the appellant's intention nevertheless play a role and justify the application of Rule 139 EPC?
4. If the answer to questions (1) and (3) is no, are there any possibilities other than restitutio in integrum (when applicable)?

View File EP1140330 on the EPO Register: https://register.epo.org/espacenet/application?number=EP99955620&lng=en&tab=main