EPO case law: Admissible appeal of a German company extinguished from the company register

Whether an opponent can be regarded as a legal entity in an ongoing opposition appeal proceedings and can validly act in these proceedings is a matter of the national law of the state where the opponent is incorporated (in this case: Germany); see decision G 1/13, point 6 of the reasons for the decision. Under German law, even a company extinguished from the company register can validly perform procedural acts such as file a lawsuit in case where such dispute is related to any form of economic interest. In such a situation, the required two-prong test (“Doppeltatbestand”) of extinction from the register and the actual absence of assets has not been satisfied and the company has therefore not yet been completely terminated. The existence of a patent and its possible revocation are of economic interest to both the patent holder and potential competitors. Thus, the position of the parties in opposition appeal proceedings is also of economic interest and the opponent has not yet ceased to exist as a company under German law. Accordingly, the appeal filed by a German opponent, who has since been struck off the company register, is also admissible (EPA BoA 26 October 2017, T 0796/12).