CLR III V 4.1 Filing of the authorisation

R. 101 EPC 1973 has been redrafted as R. 152 EPC 2000. R. 152(6) EPC, in particular, now reads: "If a required authorisation is not filed in due time, any procedural steps taken by the representative, other than the filing of a European patent application, shall be deemed not to have been taken, without prejudice to any other legal consequences provided for by this Convention." See also the decision of the EPO President dated 12 July 2007 on the filing of authorisations (OJ SE 3/2007, 128, L.1.), and J 8/10 (OJ 2012, 470).

Under R. 152(1) EPC and Art. 1(1) of the EPO President's decision (OJ SE 3/2007, 128), professional representatives whose name appears on the EPO's list and who identify themselves as such need file a signed authorisation only in certain specified circumstances (change of representative without notification that the previous representative's authorisation has terminated or where the EPO has doubts about the representative's entitlement to act), T 1204/13 (see also T 548/13).

In J 12/88 it turned out that the former representative of the appellant had acted before the EPO on behalf of the appellant without being instructed to do so and using a forged authorisation. The board considered all these proceedings to be null and void. All fees paid to the EPO on behalf of the appellant never had been due and had to be reimbursed.

In T 850/96 the appellant had alleged that the opposition was not admissible because the signatories of the notice of opposition did not file an authorisation. According to him an employee must declare with the notice of opposition that he acts as a professional representative. Otherwise he must file an authorisation. In the case under consideration both signatories of the notice of opposition were professional representatives. The board held that Art. 1(1) of the decision of the President of the EPO of 19 July 1991 (OJ 1991, 489) stipulates that a professional representative whose name appears on the list maintained by the EPO and who identifies himself as such shall be required to file a signed authorisation only in the circumstances set out in Art. 1(2) and (3) of this decision of the President (now decision of 2007, OJ SE 3/2007, 128). In the case at issue, the deficiency had not been the lack of a signed authorisation, but the failure of the signatories of the notice of opposition to identify themselves as professional representatives (see also T 1744/09 citing T 850/96 saying that a professional representative identifying himself retroactively is not precluded).

In T 425/05, the respondent (patent proprietor) requested the board at the start of the procedure to declare the appeal inadmissible, on the one hand because it had been filed at a date when the original opponent (company I) had been dissolved and had therefore ceased to have legal existence, and on the other because the mistake in the notice of appeal could not be a mere clerical error on the part of the professional representative which could easily be corrected, since the representative manifestly could not act on behalf of company F, which had not yet authorised him to do so. The board began by establishing that the representative's authorisation to act on behalf of company I had never been contested or rescinded. It was equally evident that the original opponent, company I, no longer had legal existence, as it had been dissolved and its assets had passed into the hands of company F, its associate and sole shareholder. The board concluded that company F had succeeded company I as opponent, and therefore also as the client of the representative. Thus the appeal filed by the representative, whose authorisation, confirmed in the meantime, had never been rescinded, had been implicitly, but necessarily, filed on behalf of his actual client, company F; the identification of company I as the opponent in the notice of appeal was due to a clerical error which had since been corrected.

In T 267/08 a change of representation had been notified by the new representative together with the notice of appeal. The previous representative had not contacted the EPO to indicate that his authorisation had terminated. The decision of the President of the EPO (OJ SE 3/2007, 128) stated that in cases of a change of representation, and where the EPO had not been notified of the termination of the previous representative's authorisation, "the new representative must file, together with the notification of his appointment, an individual authorisation (original and one copy) or a reference to a general authorisation already on file. If he does not, he shall be requested to do so within a period to be specified by the EPO." In the case at issue, the board invited the new representative under R. 152(2) EPC to file an authorisation, as the board had realised that the authorisation failed to name the correct opponent. The new representative sent the authorisation by fax but failed to file the original version. The board stated that the filing of a valid authorisation for the opponent must, of necessity, entail the filing of the original, and a professional representative should know this. The legal consequence of this was that the procedural steps taken by the new representative were deemed not to have been taken (R. 152(6) EPC). Consequently the notice of appeal was deemed not to have been filed and an appeal did not exist.

In T 637/09 the appellant informed the board and the respondent that Mr M, who was already acting as its professional representative, would be joined by Mr S, another professional representative. Mr S's authorisation to represent the appellant was challenged by the respondent at the start of the oral proceedings. The board observed that under R. 152(10) EPC a party may be represented by several representatives acting jointly. Mr S was not required to file a signed authorisation in order to be able to represent the appellant. There was no need to file a (further) authorisation under Art. 1(3) of the Decision of the President of the EPO (OJ SE 3/2007, 128). The board concluded that Mr S was duly authorised to represent the appellant along with Mr M.

In T 1542/10, a letter was filed on 10 January 2011 by professional representative P. The letter indicated "Nokia Siemens Networks OY" as opponent and used the same internal reference number as that indicated by representative B in the notice of opposition. In addition it referred to an enclosed power of attorney. According to this authorisation representative B authorised P to represent "Nokia Siemens Networks GmbH & Co. KG". In reply, the appellant (patent proprietor) took the view that the letter was submitted on behalf of a legal person different from the respondent since the enclosed authorisation did not indicate the respondent's name but that of Nokia Siemens Networks GmbH & Co. KG. Under the given circumstances it was quite obvious to the board from an objective perspective that the indication of the name Nokia Siemens Networks GmbH & Co. KG in the authorisation was made erroneously. The fact that the board's registry did not receive an answer after it had sent out a communication pointing out that no valid authorisation had been submitted by the respondent's new representative did not entail any negative consequences for the respondent. In particular it was noted that the communication did not specify any time limit so that the sanction provided for by R. 152(6) EPC could not apply. In view of the authorisations submitted by the respondent in its letter dated 13 June 2013 and at the oral proceedings, the board had no doubt that representative P had been authorised to represent the respondent.

The board in T 1700/11 ruled that if a European representative files an opposition on behalf of a party but fails to file a signed authorisation in due time in response to a request to do so from the board, the opposition is deemed not to have been filed (R. 152(1) and (6) EPC). The board held that this legal fiction resulted in a loss of rights (R. 112(1) EPC) and that an examination of the admissibility of the opposition, which had not been filed according to the legal fiction, was out of the question.

In T 534/07 it was decided that the validity of procedural acts undertaken by the representative for his client was not affected by the existence of a conflict of interest.

In case J 19/13 the representative who electronically signed the request for grant (EPO Form 1001E) was not a valid signatory for the applicant. A procedural act performed by a non-entitled person is to be treated in the same way as a missing signature. For the electronic filing of a document accompanied by the electronic signature of an unauthorised person, the same principle applies, as confirmed, for instance, in T 1427/09 of 17 November 2009. Therefore, the request for grant form was to be considered not signed. The signature of the applicant or his representative forms one of the requirements for the content of the request for grant (cf. R. 41(2)(h) EPC). The signature on the request for grant is, however, not one of the requirements for the accordance of a date of filing pursuant to Art. 80 EPC and R. 40 EPC.

See also chapter V.A.2.4. "Entitlement to appeal", and in particular T 1324/06 where the very existence of the authorisation was challenged.

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