T 1825/11 - Continuation opposition after lapse

EPO T 1825/11

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Key point

• In the present case, the patent had lapsed in all Contracting States during opposition-appeal. The question was which of the parties can request continuation of the proceedings. Rule 84(1) EPC gives that right to the opponent (in first instance proceedings). 
• The Board notes "that the patent proprietor also can request that the appeal proceedings be continued", thereby following established case law (in particular T 520/10)
• As a comment, note that T 520/10 states that "it is the patent proprietor who can request that the appeal-proceedings". The present decision states "that the patent proprietor also can request that the appeal proceedings be continued". Presumably, each appellant has the right, regardless of its status as proprietor or opponent. 

Summary of Facts and Submissions

I. The patent proprietor (appellant) lodged an appeal against the decision of the opposition division to revoke European patent No. 1 931 711.

II. The patent was opposed by four parties, opponents 1 to 4, now respondents I to IV.

III. In a communication pursuant to Rules 84(1) and

100(1) EPC dated 20 April 2015, the board drew the parties' attention to the fact that the patent had lapsed in all designated Contracting States and the parties were asked to inform the board, within a two-month time limit, whether any of them requested a continuation of the appeal proceedings. The parties were informed that if no request for continuation of proceedings was received in due time, the appeal proceedings would be discontinued.

IV. No party requested a continuation of the appeal proceedings in response to the communication of the board.

Reasons for the Decision

1. If a European patent has lapsed in all of the designated Contracting States, the opposition proceedings may be continued at the request of the opponent, filed within two months of a communication of the European Patent Office informing it of the lapse (Rule 84(1) EPC). According to Rule 100(1) EPC, this also applies in appeal proceedings following opposition proceedings (see e.g. decision T 329/88 of 22 June 1993, points 1 and 2 of the reasons, and decision 749/01 of 23 August 2002, points 2 and 3 of the reasons).

2. However, in the present case, given the status of the patent proprietors as appellant, it would not be appropriate for the opponents alone to decide whether the appeal proceedings, filed against an decision adverse to the appellant, are to be continued. For this reason, the board considers that Rule 84(1) EPC is to be applied mutatis mutandis in such opposition appeal proceedings, so that the patent proprietor also can request that the appeal proceedings be continued (see e.g. decision T 708/01 of 17 March 2005 and decision T 520/10 of 11 June 2013, both point 1 of the reasons).

3. As no party has, within the time limit set, requested the continuation of the appeal proceedings, the appeal proceedings are to be terminated.

Order

For these reasons it is decided that:

The appeal proceedings are terminated.