In T 0384/15 Earpiece/FREEBIT the European Board of Appeal has implied (if not affirmed) that it can.

Here, an opposition against Freebit AS’s patent for an “improved earpiece” was filed under the name of a firm of patent attorneys acting as a strawman. The opposition before the Opposition Division was unsuccessful, with the patent being held valid. The strawman appealed and Bose GmbH and Bose Ltd applied to intervene in the appeal, arguing that they were assumed infringers. The patentee objected to the intervention.

Article 105(1) of the European Patent Convention states that a third party can intervene in an opposition where the third party proves that:

1. proceedings for infringement of the same patent have been instituted against him, or
2. following a request of the proprietor of the patent to cease alleged infringement, the third party has instituted proceedings for a ruling that he is not infringing the patent.

The patentee reasoned that Bose GmbH and Bose Ltd were group companies of Bose Corporation and that Bose Corporation or one of its group companies was instructing the strawman (the strawman asserted that it was not receiving instructions from Bose GmbH or Bose Ltd directly). On this basis, it advanced two reasons for objecting to the intervention.

First, it argued that “all divisions, companies and legal entities within the Bose Corporation should be regarded as a group of joint opponents (cf. G 3/99, OJ EPO 2002, 347) with [the strawman] acting as a common representative.” On that basis, Bose GmbH (and by implication Bose Limited) would be “... one of the joint opponents and thus not able to intervene as a third party.”

Second, it argued that the strawman’s opposition and subsequent interventions were an abuse of process. Among other things, it reasoned that the use of a strawman “... allowed Bose to pick and choose who they might subsequently wish to present as the true opponent, depending on circumstances ...” It submitted that, as a result, the strawman’s opposition must be inadmissible ex tunc. It followed that the intervening oppositions fell away.

The Technical Board of Appeal held that the interventions were admissible. It reasoned as follows:

With regard to the first argument “... the board considers that there is no question that the interveners are "third parties", i.e. different legal entities, with respect to the [strawman, a firm of patent attorneys] whether or not one of Bose GmbH and Bose Limited is the principal instructing [the strawman].”

With regard to the second argument, it held:

“In decision T 305/08, the opponent-appellant OI was alleged to be the patent department (although had an entirely different name) acting for interveners OII and OIII." The board of appeal in that case noted the evidence which appeared to suggest that OII and OIII belonged to the same group of companies as OI, but found that there was no attempt to circumvent the law by abuse of process. In this respect, the interveners were quite clearly distinct legal entities and were adhering to due process by filing interventions which was only possible by the actions of the respondent-proprietor against them ...

In the board's view, the same situation exists in the present case. The respondent has produced evidence suggesting a relationship between the appellant and the interveners, but no proof, as admitted by the respondent, that [the strawman] was acting directly on behalf of either Bose GmbH or Bose Limited. Further, the representatives for the appellant and the interveners expressly denied that this was the case.

The argument that the anonymity created by using a straw man allowed Bose to pick and choose who they might subsequently wish to present as the true opponent, depending on circumstances, is ... not convincing. In the present case, neither Bose GmbH nor Bose Limited were apparently involved when the opposition was filed. Bose has not presented anyone as the ‘true opponent’, and indeed has had no need to do so.”

The Technical Board subsequently upheld the appeal, finding the patent to be invalid.

Case details at a glance

Jurisdiction: European Patent Office
Decision level: Boards of Appeal
Parties: Freebit AS (proprietor) and Santarelli SA, Bose GmbH, Bose Limited (opponents)
Citation: T 0384/15
Date: 27 April 2018
Full decision (link): www.epo.org