T 1421/05 () of 18.1.2011

European Case Law Identifier: ECLI:EP:BA:2011:T142105.20110118
Date of decision: 18 January 2011
Case number: T 1421/05
Application number: 91903945.3
IPC class: A23L 1/054
Language of proceedings: EN
Distribution: B
Download and more information:
Decision text in EN (PDF, 155.674K)
Documentation of the appeal procedure can be found in the Register
Bibliographic information is available in: EN
Versions: Unpublished
Title of application: Docosahexaenoic acid, methods for its production and compounds containing the same
Opponent name: OmegaTech, Inc.
Sanofi-Aventis Deutschland GmbH
Monsanto Company
Nagase Biochemicals, Ltd.
Board: 3.3.09
Headnote: 1. Where the business assets in relation to which an opposition was filed have been transferred and at the same time the transferor has contractually agreed to transfer the opposition to the transferee, the status of opponent remains with the transferor in the absence of there being filed with the Office (a) evidence sufficiently evidencing the transfer and (b) a request to recognise the transfer of opponent status (point 3.3).
2. Where in such a case the transferor subsequently ceases to exist but has a universal successor, the status of opponent is capable of passing to that successor (point 4.7).
3. The mere possibility of abuse (in the sense of G 3/97) arising out of such events does not prevent opponent status passing in this way; it is for the proprietor to prove relevant acts of abuse (point 5).
4. An appeal filed by mistake in the name of an opponent who no longer exists but who has a universal successor, and which was obviously intended to be filed on behalf of the person who is the actual opponent and who was prejudiced by the decision, namely the universal successor, is admissible; if necessary the notice of appeal and statement of grounds of appeal may be corrected to record the name of the true appellant/opponent (points 6 and 7).
5. It is not in accordance with normal procedural efficiency and principles of fairness to allow a party to re-open questions relating to the formal allowability of a claim and to attempt to raise a new issue which it had had the opportunity to raise and which it should have raised at an earlier stage of the proceedings, and in doing so to resile from its previous position (point 13.11).
Relevant legal provisions:
European Patent Convention Art 56
European Patent Convention Art 83
European Patent Convention Art 84
European Patent Convention Art 112(2)
European Patent Convention Art 114(2)
European Patent Convention 1973 R 26(2)(c)
European Patent Convention 1973 R 64(a)
European Patent Convention 1973 R 65(2)
European Patent Convention 1973 R 88
European Patent Convention 1973 R 90(1)(a)
European Patent Convention 1973 R 101(7)
Rules of procedure of the Boards of Appeal Art 13(1)
Keywords: Inter-partes transfer of opposition (no)
Transfer of opposition status to universal successor (yes)
Correction of name of appellant (yes)
Admissibility of appeal (yes)
Party entitled to resile from position previously taken in opposition proceedings (no)
Issue decided in first appeal res judicata (yes)
Amendments of party's case in appeal proceedings (no)
Inventive step (yes)


Cited decisions:
G 0004/88
G 0009/91
G 0010/91
G 0003/97
G 0002/04
T 0234/86
T 0301/87
T 0934/91
T 0951/91
T 0201/92
T 0525/94
T 0353/95
T 0670/95
T 0019/97
T 0298/97
T 1137/97
T 1204/97
T 0097/98
T 0656/98
T 0814/98
T 0460/99
T 0952/99
T 0446/00
T 1091/00
T 0015/01
T 0136/01
T 0520/01
T 0715/01
T 0413/02
T 0956/03
T 0006/05
T 0425/05
T 0724/05
T 1324/06
T 0157/07
T 0762/07
Citing decisions:
T 0007/07
T 0445/08
T 0960/08
T 0637/09
T 1621/09
T 1911/09
T 0688/10
T 1032/10
T 0184/11
T 0423/11
T 2357/12
T 0194/15
T 0445/16

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