Opponent Condition Can't Move Transferred

This came to the IPKat via 2 of his friends, Darren Smyth (who directed his attending to it) together with Caroline Williams (who prepared it). It's a banking concern complaint on an EPO Enlarged Board of Appeal, Case G 2/04, Transfer of opposition/Hoffmann-La Roche, 25 May 2005 .

In its determination T 1091/02 (OJ EPO 2005, fourteen - Methods for detection/Hoffmann-La Roche), Technical Board of Appeal 3.3.4 referred a expose of questions to the Enlarged Board of Appeal.

"In the proceedings giving ascent to the referral, 2 opposition were filed inwards the advert of Akzo Nobel NV together with Vysis Inc respectively. After rejection of the oppositions, an appeal was filed on 25 Oct 2002 inwards the advert of bioMérieux BV. It was submitted that bioMérieux BV at 1 time owned the diagnostic activities of Akzo Nobel NV to which the opposition pertained. As a precautionary stair out inwards illustration the appeal inwards the advert of bioMérieux BV was considered inadmissible, it was requested that the appeal live on treated equally beingness inwards the advert of Akzo Nobel NV.

In an accompanying annunciation it was explained that the diagnostic activities of Akzo Nobel had been concentrated inwards its subsidiary Organon Teknika BV. As a resultant of restructuring inside Akzo Nobel NV, an understanding effective equally of xxx June 2001 had been reached to transfer the diagnostic activities of Organon Teknika BV from Akzo Nobel NV to bioMérieux SA. The opposition had been instituted past times Akzo Nobel NV inwards the involvement of its European diagnostic line of piece of employment organisation equally conducted on its behalf past times its line of piece of employment organisation unit of measurement Organon Teknika BV. All the shares of Organon Teknika BV had been transferred to bioMérieux SA which was at 1 time 100% the possessor of Organon Teknika BV, at 1 time called bioMérieux BV."

The questions referred were equally follows:

1.(a) Can opponent condition live on freely transferred? Held: The condition equally an opponent cannot live on freely transferred.

(b) If query 1(a) is answered inwards the negative: Can a legal individual who was a 100% owned subsidiary of the opponent when the opposition was filed together with who carries on the line of piece of employment organisation to which the opposed patent relates start opponent condition if all its shares are assigned past times the opponent to simply about other fellowship together with if the persons involved inwards the transaction concord to the transfer of the opposition? Held: Influenza A virus subtype H5N1 legal individual who was a subsidiary of the opponent when the opposition was filed together with who carries on the line of piece of employment organisation to which the opposed patent relates cannot start the condition equally opponent if all its shares are assigned to simply about other company.

[...]

3. If query 1(a) together with (b) is answered inwards the negative: Is an appeal admissible if, although filed on behalf of a individual non entitled to appeal, the notice of appeal contains an auxiliary asking that the appeal live on considered filed on behalf of a individual entitled to appeal? If, when filing an appeal, at that topographic point is justifiable legal dubiety equally to how the police describe is to live on interpreted inwards honor of the query of who the right political party to the proceedings is, it is legitimate that the appeal is filed inwards the advert of the individual whom the individual acting considers, according to his interpretation, to live on the right party, together with at the same time, equally an auxiliary request, inwards the advert of a unlike individual who might, according to simply about other possible interpretation, besides live on considered the right political party to the proceedings.

Darren adds:

"Enlarged BoA Decisions are commonly eagerly awaited together with of item interest. However, this Decision relates to a really item laid of circumstances and, apart from, equally expected, confirming that Opponent condition is non freely transferable (it tin exclusively live on transferred along amongst the sale of the whole of the line of piece of employment organisation of the Opponent), picayune inwards the Decision appears to live on a full general relevance".

thank y'all Darren together with Caroline for their kindness. Merpel wonders why opponent condition can't live on transferred. If a granted patent shouldn't convey been granted, why should shifts inwards the legal condition of an opponent give it protection?

Things that tin live on transferred here, here and here
Things that can't live on transferred if you're English linguistic communication here and here