European Union: Correcting Clerical Errors In EPO Oppositions

Last Updated: 12 February 2016
Article by Tim Andrews and Jade Powell

Oppositions at the EPO provide an effective way of mitigating disadvantageous patent grants. However, although effort should primarily be spent focusing on argumentation, it is also important to avoid clerical errors before submission. One error that can occur, particularly when an opposing party has multiple divisions and/or subsidiaries, is inconsistency between documents with regards to the name of the opposing party.

In decision T 0615/14, the EPO Board of Appeal applied the principles established in G 1/12 to a case where correction of an opponent's name on a notice of opposition was requested. A notice of opposition was filed by a professional representative against European Patent No. 1 605 772 comprising a completed form 2300.1 (Notice of Opposition) and a document entitled "Facts and Arguments". The form named NV Nutricia as the opponent whilst the "Facts and Arguments" document named Campina Nederland Holding as the opponent. Following the expiry of the opposition period another representative from the same law firm wrote to the EPO requesting the correction of the designation of the opponent on form 2300.1 to Campina Nederland Holding BV under Rule 139 EPC.

The Opposition Division reasoned that, as established by T 25/85, it was a fundamental principle that the identity of the opponent had to be established at the expiry of the opposition period in order to be a party to the opposition proceedings as laid down in Article 99(3) EPC. Remediable deficiencies and omissions in information concerning the opponent, which could be remedied on invitation under Rule 77(2) EPC, included details relating to the correct designation of the natural or legal person or to postal requirements in respect of the opponent's address. Rule 139 EPC could not be used in order to subsequently provide, once the opposition period had expired, information needed to identify an opponent for the first time. Where the state of the file on the last day of the opposition period did not allow the identification of the opponent, a correction was not possible. The Opposition Division therefore rejected the opposition as inadmissible.

The opponent appealed this decision, arguing that in view of G 1/12 the request for correction under Rule 139 EPC should be allowed. Rule 139 EPC, first sentence, states that "Linguistic errors, errors of transcription and mistakes in any document filed with the European Patent Office may be corrected on request". In G 1/12, issued after the Opposition Division's ruling, the Enlarged Board of Appeal held that the general procedure for correcting errors under Rule 139 EPC was available for the correction of an appellant's name in a notice of appeal provided that, in line with established case law on the application of the rule, the correction reflected what was originally intended, did not give effect to a change of mind or development of plans, and represented the party's actual rather than ostensible intention.

In the present case the Board of Appeal held that G 1/12, as far as Rule 139 EPC is concerned, was equally applicable to a request to correct an opponent's name in a notice of opposition. Furthermore, although it was not clear on the basis of the documents on file at the expiry of the opposition period in whose name the representative originally intended to file the opposition, it was directly derivable from G 1/12 that evidence submitted later in proceedings could be used in order to establish this fact. E-mail evidence showed that the representative was instructed to file the opposition by the IP manager of DMV-International, which at the time of filing the opposition was a sub-division of Campina Nederland Holding. Therefore of the two companies named in the notice of opposition, NV Nutricia and Campina Nederland Holding, it could only be the latter in whose name the representative originally intended to file the opposition. The Board of Appeal therefore allowed the request for the opponent's designation in form 2300.1 to be corrected under Rule 139 EPC and ruled the opposition to be admissible. The opposition was remitted to the opposition division for further prosecution.

So, where are we left after G 1/12 and T 0615/14? Of course, European practitioners should always strive to ensure that all the correct details are included at the first time of asking. However, there will be circumstances, maybe resulting from a miscommunication, when the incorrect details are given for key information such as the opponent's identity. These decisions tell us that maybe all is not lost. However, it is essential that in such circumstances strong evidence can be provided as to the true intention of the party involved.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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