The Enlarged Board of Appeal (EBA) of the European Patent Office (EPO) has just announced that it is seeking from third parties written statements on case G 1/13, referred to the EBA by Technical Board of Appeal (TBA) 3.3.7 with interlocutory decision of 21 June 2013 in case T 22/09.
So what is going on? Well, in a decision reminiscent of the quandaries of Marty Mcfly in Back to the Future, the members of a Technical Board of Appeal referred three questions to the Enlarged Board of Appeal.
When an opposition is filed by a company, that company must not only exist at the moment when the opposition is filed but must continue to exist throughout the opposition proceedings and, in the event of an appeal, throughout the appeal proceedings.”
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?