Martin Howe QC appeared for the patentee Valeda Co LLC in opposition proceedings in the EPO, Munich, against the validity of EP 14250043 which related to restraints for wheelchairs in moving vehicles. The priority claimed by the European Patent was based on a US Provisional filing, which in error had named as applicant an individual who was President of Valeda instead of the three employees who had made the invention and who executed formal assignments to Valeda of their rights in the US provisional prior to the filing of the application for the EP. The error was identified afterwards and the USPTO accepted an application to correct the name of the applicant on the US Provisional which under US law had retrospective effect.
The Opponent however argued that Valeda was not entitled to be regarded as the successor in title to the priority right arising from the US provisional at the time when Valeda filed the application for the EP for the purposes of Article 4(A)(1) of the Paris Convention and Article 87(1) EPC. The Opposition Division was enlarged with a legal member in order to consider this legal issue, and Martin Howe QC appeared for Valeda at the resumed hearing before the enlarged Division. The Division accepted Valeda’s argument based on Florida and US law that Valeda (rather than its President who had been erroneously named) was at all times the owner of the international Paris Convention priority right arising from the US provisional filing and accordingly was entitled claim priority from it when it filed the application for the EP.
An appeal has been filed by Dahl to the Board of Appeal.