T 1959/15 - Continue opposition after lapse

Key points

• The Board continues the opposition appeal proceedings upon request of the appellant-opponent after the lapse of the patent. 
• “Having regard to the legitimate interest of the appellant-opponents in attempting to reverse the decision of the opposition division rejecting the opposition and to the circumstance that the board's decision on the patent has an ex tunc effect under Article 68 EPC, the board, exercising its discretion under Rule 84(1) EPC, decided to continue the appeal proceedings.”
• I note, favourably, that this reasoning is quite generic and does not refer to any particular circumstances of the case. It also implicitly recognizes that revocation is ex tunc unlike lapse of the patent, so that the opponent can very well 'gain' something by the continuation of the opposition procedure. Indeed the patent was revoked in this case.
• See also my comments on T 598/98.

EPO T 1959/15 -  link

Reasons for the Decision

1. The appeal is admissible.

2. The European patent in suit has lapsed for all the designated contracting states. Under Rule 84(1) EPC, which is applied mutatis mutandis in opposition appeal proceedings pursuant to Rule 100(1) EPC, the opposition appeal proceedings may be continued at the request of the appellant-opponent filed within two months of a communication from the board informing it of the lapse.

In the reply to the communication of the board informing them of the lapse, the appellant-opponents requested, within the set time limit of two months, continuation of the appeal proceedings and confirmed their requests that the decision under appeal be set aside and that the patent in suit be revoked.
Having regard to the legitimate interest of the appellant-opponents in attempting to reverse the decision of the opposition division rejecting the opposition and to the circumstance that the board's decision on the patent has an ex tunc effect under Article 68 EPC, the board, exercising its discretion under Rule 84(1) EPC, decided to continue the appeal proceedings.


[...]

Order

For these reasons it is decided that:

1. The appealed decision is set aside.

2. The patent is revoked.