T 0149/85 (Inadmissible language of opposition) of 14.1.1986

Summary of Facts and Submissions

I. The German appellants filed opposition to European patent No. 0043172, grant of which was mentioned in the European Patent Bulletin on 21 September 1983, through a Dutch patent attorney by letter dated 20 June 1984 received at the European Patent Office's Branch at The Hague on 21 June 1984. The fee was paid at the same time. The notice of opposition was in Dutch and the representative filed a German translation with covering note dated 18 July 1984, which was received on 19 July 1984.

II. In a decision delivered on 28 March 1985 the opposition was rejected as inadmissible under Rule 56(1) EPC because it had not been filed in one of the official languages within the period for opposition.

III. The appellants appealed against this decision in a letter dated 21 May 1985 and received on 22 May 1985, giving further reasons for the appeal in a document dated 15 July 1985 and received on 17 July 1985. The appellants hold that their opposition complied with the provisions of Article 99(1) and Rule 1(1) EPC because the latter allows opponents to file documents in any of the official languages of the European Patent Office but does not oblige them to do so; otherwise, patent attorneys from the Netherlands, Italy, Sweden, the Italian-speaking part of Switzerland and the Dutch- speaking part of Belgium would be at a disadvantage vis-à-vis patent attorneys from other Contracting States. The appellants request that the contested decision be set aside and the opposition proceedings continued. The respondents request that the appeal be dismissed.

Reasons for the Decision

1. The appeal complies with Articles 106 to 108 and Rule 64 EPC and is therefore admissible.

2. The opposition was filed in writing, together with a reasoned statement and the prescribed opposition fee duly paid, on the last day of the period for opposition. The requirements set out in Article 99(1) EPC are thus met. However, the opposition is inadmissible since it was written in Dutch and the German translation was received only after the nine-month period laid down in Article 99(1) EPC had expired.

3. The language of the proceedings in the present case is German. The Dutch patent proprietor originally filed his application in Dutch, followed later by a translation into German in accordance with Article 14(2), second sentence, EPC. Under Article 14(3) EPC, therefore, German must be used as the language of the proceedings in all proceedings before the European Patent Office concerning the application or the resulting patent, unless otherwise provided in the Implementing Regulations.

4. Rule 1(1) of the Implementing Regulations to the EPC contains a derogation from the provisions concerning the language of the proceedings in written proceedings in favour of opponents by allowing them to file documents in any of the official languages of the European Patent Office. This means that in the present case the German opponents could have filed their opposition in English or French instead of in German. The clear implication of Rule 1(1) EPC is that an opponent may choose the official language of the European Patent Office in which he files his documents. The appellants' interpretation of the word "may" in Rule 1(1) EPC, namely "may" in the sense of "do not have to", is supported by neither the letter nor the spirit of the text.

5. Filing an opposition in Dutch would be admissible only if the opponent were a legal person having his principal place of business not in the Federal Republic of Germany but in the Netherlands, since under Article 14(4) in conjunction with Article 14(2) EPC a Dutch opponent may also validly file in Dutch an opposition which has to be filed within a time limit. This, however, is not true in the present case, since the opponents/appellants have their principal place of business in the Federal Republic of Germany.

6. The circumstance of the German opponents' being represented by a Dutch patent attorney does not in any way alter the fact that the filing of the opposition in Dutch was inadmissible. Article 14(4) in conjunction with Article 14(2) EPC expressly applies only to the persons specified therein who wish to take part in proceedings before the European Patent Office. This is clearly indicated by Rule 1(1) EPC, which explicitly makes the favourable provision as to language only for opponents and third parties intervening in opposition proceedings. It does not apply, however, to persons who merely wish to represent parties to proceedings and do not themselves wish to be such parties. There can therefore be no question of a broader interpretation in favour of representatives having their residence or principal place of business within the territory of a Contracting State having an official language other than German, English or French. Accordingly, a representative can avail himself only of those privileges which the EPC accords the party to the proceedings whom he is representing. The European Patent Convention does not allow the representative his own choice with regard to the language used; to that extent, therefore, he has no more rights than the opponent he represents.

7. In the Board's view the opponent's representative is not put at an unacceptable disadvantage by the language rule. In fact he has the same rights as any other representative in a comparable situation. At the same time, it is true that a professional representative having his residence or principal place of business within the territory of a Contracting State in which the official language is one other than German, English or French cannot represent in his mother tongue a party to proceedings having his residence or principal place of business within the territory of a Contracting State whose official language is German, English or French. He has no alternative but to use the language laid down for the party to the proceedings. However, the European Patent Convention takes account of this. On the principle that provisions making exceptions are not susceptible of a broader interpretation, the Board sees itself unable to apply the language rule in favour of the opponents to their representatives as well. Only the competent legislators could make such provision.

8. Nor can the opposition be regarded as admissible on the grounds that it is regarded as having been filed in the representative's name. On the contrary, the opposition was filed expressly on behalf of the appellants, whose authorisation for this purpose was duly filed. Consequently, no opposition was filed by the representative in his own name within the period for opposition.

ORDER

For these reasons, it is decided that:

The appeal is dismissed.