Ambiguous abbreviations: determining the opponent’s identity

Case Law Patents

In T0130/21, the decision of the Opposition Division (OD) to reject the opposition as inadmissible was appealed by the Opponent (O). In the decision under appeal, the OD ruled that the identity of the O could not be unambiguously determined since the EPO form 2300 (i.e., the Notice of opposition) identified the O as “Swedish Match North Europe AB” while the accompanying submissions setting out the facts and arguments (opposition brief) identified “Swedish Match” as the O. The O did not agree and argued that there was nothing to suggest, in the documents making up the notice of appeal, that the reference to “Swedish Match” in the opposition brief was anything other than a permissible abbreviation of “Swedish Match North Europe AB” identified in EPO form 2300. The Board of Appeal (the Board) agreed with the O and reasoned that the documents filed as the notice of opposition did not contain any information which could lead a third party to conclude that “Swedish Match” referred to anything else than the company “Swedish Match North Europe AB”. • The use of the global company name "Swedish Match" without precision as to the legal entity does not contradict the unambiguous information provided in EPO form 2300; • Failure to use the exact official designation of a legal entity, or the use of an abbreviation instead of its full name, do not render an opposition inadmissible as long as the party's identity can be established.

Background

In the decision under appeal, the opposition against European patent 2830622 was deemed to be inadmissible because the identity of the O could not be unambiguously determined. In the case at hand, the O was identified as “Swedish Match North Europe AB” in the EPO form 2300 and as “Swedish Match” in the opposition brief. The OD believed that the reference to “Swedish Match” could reasonably be understood as a reference to “Swedish Match AB”, a Swedish company which was distinct from “Swedish Match North Europe AB”. Following Art. 99(1) EPC together with Rule 76(2) EPC, the OD ruled that the identity of the O could not be sufficiently established on the basis of the documents and information filed within the opposition period, such that the opposition as filed was not admissible. A request for correction of the O’s identity under Rule 139 EPC was refused on the ground that it was not filed without delay.

The Appeal

The decision of the OD to reject the opposition was appealed by the O. According to the O, the documents constituting the notice of opposition identified only one existing legal person as the O, namely "Swedish Match North Europe AB". There was nothing to suggest, in the documents making up the notice of appeal, that the reference to "Swedish Match" in the opposition brief was anything other than a permissible abbreviation of "Swedish Match North Europe AB" identified in EPO form 2300, and nothing to suggest that "Swedish Match AB" could have been meant. Accordingly, the O concluded that the opposition as filed was admissible.

In contrast, the patent proprietor (P) believed that the identification of "Swedish Match" in the opposition brief could not be considered as a reasonable abbreviation of "Swedish Match North Europe AB". Since this second identification was the only indication of an opponent including the street and house number, a third party reading the documents making up the notice of opposition would have concluded that "Swedish Match" referred to the second company "Swedish Match AB", despite the lack of "AB". Furthermore, the O’s request to correct the name amounted to admitting that "Swedish Match" was a mistake rather than an abbreviation. Following this reasoning, the P stated that a third party would conclude that "Swedish Match" referred to "Swedish Match AB", and thus would not be able to unambiguously determine the identity of the O from the notice of opposition.

The Board did not agree with the arguments provided by the P. The Board stated that there was no mention of the separate company "Swedish Match AB" in either EPO form 2300 or the accompanying brief. The opposition brief only mentions "Swedish Match", which is not the full business name of an existing company. The documents filed as the notice of opposition did not contain any information which could lead a third party to conclude that "Swedish Match" refers to "Swedish Match AB". As a result, the use, in the opposition brief, of the global company name "Swedish Match" without precision as to the legal entity meant it did not contradict the unambiguous information provided in EPO form 2300. Together, the documents filed as the notice of opposition clearly designated the legal entity "Swedish Match North Europe AB" as opponent.

With respect to the P’s argument that the O’s request to correct the name under Rule 139 EPC amounted to the admission of a mistake, was not found to be persuasive. The Board decided that the O could have filed an auxiliary request for correction of "Swedish Match" for the case where the Board would have found this indication to contradict EPO form 2300. This would not preclude the O to defend the view that there was no such contradiction in the first place.

Other Case Law

The Board further considered that is was established case law that the failure to use the exact official designation of a legal entity, or the use of an abbreviation instead of its full name, do not render an opposition inadmissible as long as the party's identity can be established (see the Case Law of the Boards of Appeal, 10th edition, 2022, IV.C.2.2.4(b), in particular decisions T 870/92 and T 1034/08 cited by the respondent). Taking into account the unambiguous information in the EPO from 2300, the Board believed this was the case here.

Decision of the Board (of Appeal)

The Board ruled that the EPO form 2300 correctly identified the O, and was not contradicted by the opposition brief. Taken together, form 2300 and the opposition brief unambiguously identify the O as "Swedish Match North Europe AB".

Since the OD rejected the opposition as inadmissible, and consequently did not examine the opposition in substance, the case was remitted to the OD.

Summary written by the NLO EPO Case Law Team

EPO Case Law Team

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