The first referral to the Enlarged Board of Appeal relates to the interaction between the provisions of national law and the EPC. This referral is derived from an appeal before the Technical Board of Appeal (T0022/09) and concerns the effect of the restoration of a company to the register of companies under section 1029 of the UK Companies Act 2006 on proceedings before the EPO.
In the appeal in question, the respondent objected to the appeal as inadmissible since the company in whose name the opposition had been filed (Formalities Bureau Limited) had ceased to exist three years before the Opposition Division issued the decision under appeal. The appellant subsequently provided details of an application to the Chancery Division of the High Court of Justice to restore Formalities Bureau Limited to the register of companies under s1029 of the UK Companies Act 2006 and a “General form of Judgement or Order” by which the Chancery Division of the High Court of Justice ordered the restoration of Formalities Bureau Limited to the register of companies. The order also stated that pursuant to the Companies Act 2006, the company was ‘thereupon to be deemed to have continued in existence as if its name had not been struck off’.
Under Article 99(1) EPC “any person” may file a notice of opposition within nine months of the publication of the mention of the grant of a European patent in the European Patent Bulletin. Where an opposition is filed by a company, the company must exist at the moment when the opposition is filed and must continue to exist throughout the opposition proceedings and any subsequent appeal proceedings. As such the opposition proceedings in question could have been terminated at any point after the opponent company was dissolved on the grounds that the opponent had ceased to exist. Furthermore the appeal was inadmissible at the time of filing since the appellant did not exist.
There is no clear answer as to whether these defects can be remedied retroactively by the provision of national law which deems a company restored to the Register never to have been dissolved. As such, the following questions have been referred to the Enlarged Board of Appeal:
- When 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?
- When 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?
- 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?