Legal framework
Under Article 99(1) EPC, within nine months of publication of the mention of grant, “any person” may give notice of opposition to a European patent, provided the opposition fee is paid. However, G 9/93 confirms that a patent proprietor cannot oppose its own patent.
The expression “any person” is broad. The opponent does not need to show a commercial interest, a legal interest, or any particular reason for filing the opposition. Opposition is therefore available to competitors, private individuals, inventors, former employees and even persons acting for training purposes, provided the formal requirements are met.
A “straw-man” opposition is also generally admissible. In G 3/97, the Enlarged Board held that an opposition is not inadmissible merely because the named opponent is acting on behalf of a third party. It is inadmissible only if the arrangement circumvents the law by abuse of process, especially where the straw man acts on behalf of the patent proprietor.
Appeals are governed by Article 107 EPC. Only a party to proceedings who is adversely affected by a decision may appeal.
Statement a)
True.
Ms Smith is mentioned as the inventor, but she is not the patent proprietor. The proprietor is company CE.
Being named as inventor does not prevent a person from filing an opposition. Under Article 99(1) EPC, any person may oppose, subject to the exclusion of the patent proprietor under G 9/93. Since Ms Smith is not company CE, she can validly file an opposition, provided she does so within the nine-month opposition period and pays the opposition fee.
Ms Smith is resident in Great Britain. The United Kingdom is an EPC contracting state, so she is not subject to compulsory representation under Article 133(2) EPC, which applies to persons without residence or principal place of business in a contracting state.
Statement b)
True.
A candidate preparing for the European qualifying examination who is resident in the EU can validly file an opposition in his own name, even for training purposes.
The EPC does not require an opponent to have a commercial interest, a legal interest or a personal grievance. The motivation for filing the opposition is normally irrelevant. Since the candidate is not the patent proprietor, he falls within “any person” under Article 99(1) EPC.
Statement c)
False.
Ms Smith cannot validly appeal the decision to grant EP-X.
Under Article 107 EPC, only a party to the proceedings who is adversely affected by a decision may appeal. Ms Smith was not the applicant or proprietor in the grant proceedings. Merely being named as inventor does not make her a party to those proceedings.
Her central EPO remedy, if she wants to challenge the patent, is opposition under Article 99 EPC, not an appeal against the grant decision.
Statement d)
True.
Mr Singer can validly file an opposition in his own name on behalf of Ms Smith without naming Ms Smith as the opponent.
This is a straw-man opposition. Under G 3/97, an opposition is not inadmissible merely because the named opponent acts on behalf of an undisclosed third party. It becomes inadmissible only where the arrangement circumvents the law by abuse of process, in particular if the straw man acts on behalf of the patent proprietor.
Here, Ms Smith is not the patent proprietor, and no abuse of process is indicated. Therefore, Mr Singer may validly be the named opponent.
Exam tip
For opposition standing, remember: any person except the patent proprietor may oppose. Do not look for a commercial motive or legal interest. Inventors, former employees, students and straw men can all be valid opponents. By contrast, appeal standing is narrower: only a party to the proceedings adversely affected by the decision may appeal under Article 107 EPC.
Legal Disclaimer
The information provided in this post is for general informational purposes only and does not constitute legal advice. This content should not be used as a substitute for professional legal advice tailored to your specific circumstances. For advice related to any specific legal matters, you should consult a qualified attorney.