Tuesday, 1 April 2014
Patentee+Patentee=Two Appeal Fees
(Pat) 17/14 of the German Bundespatentgericht is based, two legal entities co-owning the patent had commonly filed an appeal against the decision of the opposition division and paid only one appeal fee.
According to earlier decisions of other senates of the the Bundespatentgericht, this had been considered sufficient because co-owners of a patent were considered mandatorily joint parties (notwendige Streitgenossen) in a legal sense. After all, they are obliged to perform procedural steps jointly.
According to the 10th Senate, this is not sufficient to qualify the co-owning patentees as a single party. According to law, the fees have to be paid for “for each Appellant” (für jeden Antragsteller).
Subsequent attempts of the patentee to argue that the actually formed single legal entity for the purpose of prosecuting the patent from the onset have not been successful. The same holds for the attempt to subsequently allocate the appeal fee to one of the patentees. It has to be unambiguously clear which parties are parties of the appeal procedure at the time limit to file the appeal.
The appeal was deemed to be not filed.