Key points
- The Notice of opposition was filed stating the name of the opponent without the legal form (without mentioning Ltd.). A request for correction is filed and allowed by the OD, and the OD takes a separate interlocutory decision that the opposition is admissible (link). The admissibility of the opposition is no further discussed in the final decision rejecting the opposition.
- The interlocutory decision is issued as a "Communication pursuant to Article 113" and is not signed and only stamped "for the opposition division".
- The objection of the proprietor is that there are two companies at the given address, namely Calibre Search Ltd. and Calibre Search (Manchester) Ltd. and that it would be unclear which one was the opponent.
- The interlocutory decision did not allow a separate appeal, such that it can be appealed with the final decision (Article 106(2) EPC).
- This case also illustrates that a document not being labelled as a decision can still be a decision in the sense of Article 106 EPC.
- The OD rejects the opposition. The opponent appeals (against the final decision).
- The respondent disputes the admissibility of the opposition.
- The opponent argues that the respondent can not object to the admissibility of the opposition.
- The Board: "In any case, as the Opposition Division did not allow a separate appeal under Article 106(2) EPC on the decision on the admissibility of the opposition contained in the communication dated 15 April 2016, that decision could only be appealed together with the Opposition Division's final decision. Hence, [...] it follows from this link that the Opposition Division's decision on the admissibility of the opposition and the underlying reasoning is to be treated as an issue which is part of the Opposition Division's final decision."
- The prohibition of information in peius does not apply because it does not apply to the individual grounds for the decision.
- The Board: "Under the principle of the prohibition of reformatio in peius it is unlawful to worsen the position of the appellant because of its own appeal. The principle of the prohibition of reformatio in peius does, however, not apply separately to each point or issue decided (Case Law of the Boards of Appeal, 10th edition 2022, V.A.3.1.1). The yardstick for determining whether the position of an appellant, because of its own appeal, is worsened in a way which is incompatible with the principle of the prohibition of reformatio in peius is the order of the decision under appeal, in particular the order's legal effect on the appellant (see T 1437/15, Reasons 3.2.2, with reference to G 9/92, Reasons 14 and 16)."
- " If an opposition is considered inadmissible in the appeal proceedings, an appellant whose opposition was rejected in the decision under appeal as unallowable would not be in a worse position than if it had not appealed, as in both cases the patent would be maintained as granted. The legal reasons leading to this result, including whether the opposition is rejected as inadmissible or unallowable, do not fall within the scope of the principle of the prohibition of reformatio in peius (see T 384/08, Reasons 2 and 3, first sentence)."
- "In the present case, the admissibility of the opposition can therefore be considered"
- I note that the Board does not have to decide on the question of whether, if an interlocutory decision holding the opposition admissible and allowing a separate appeal, is not appealed by the patentee, the patentee can bring up the admissibility question in an appeal procedure regarding the final decision.
EPO
The link to the decision is provided after the jump, as well as (an extract of) the text of the decision.
source http://justpatentlaw.blogspot.com/2022/09/t-080317-appellate-review.html
