The German Federal Patents Court (BPatG) decision 20 W (pat) 8/23 dated 15 November 2023 illustrates how important it is that the identity of a party to the proceedings be clear from the outset. The BPatG affirmed that an opposition is inadmissible if the identity of the opponent cannot be derived from the opposition. In the decided case, a patent attorney signed the opposition brief and argued that he was the opponent. The BPatG did not concur with this reasoning.
The official headnote reads, in English translation:
“If a patent attorney files an opposition against a patent in his or her own name (also as a “straw man”), his/her role as the sole opponent must be clear from the information provided within the opposition period, either directly or by way of interpretation. The mere signing of the notice of opposition by the attorney, who usually acts on behalf of third parties, is not sufficient [to clearly indicate that he/she acts not as representative but as party to the proceedings].”
This signifies the importance of adding a passage as to the identity of the opponent in an opposition brief filed with the GPTO (which – other than the EPO’s form 2300 – does not provide an official form reminding the party of the information required for an opposition to be admissible).
