14-15 November 2018
|European Case Law Identifier:||ECLI:EP:BA:2011:T220608.20110404|
|Date of decision:||04 April 2011|
|Case number:||T 2206/08|
|IPC class:||C11B 13/02|
|Language of proceedings:||EN|
|Download and more information:||
|Title of application:||Brine separation in tall soap oil preparation|
|Applicant name:||Linde AG|
|Opponent name:||L'Air Liquide, S.A.|
|Relevant legal provisions:||
|Keywords:||Lapse of patent
Termination of appeal proceedings
Summary of Facts and Submissions
I. The Opposition against the European Patent No. 1 442 107 raised by the Appellant/Opponent was rejected by the Opposition Division.
The Appellant filed an appeal from this decision.
With the summons dated 7 February 2011 the Parties were summoned for oral proceedings before the Board to be held on 25 May 2011.
A letter of the Respondent/Proprietor dated 9 February 2011 was received by the European Patent Office reading as follows:
"Auf die Ladung zur mündlichen Verhandlung vom 07/02/11:
Die Patentinhaberin teilt hiermit das Erlöschen des Europäischen Patents EP 1 442 107 (Brine Separation in Soap Oil Preparation) in allen Vertragsstaaten des Europäischen Patentübereinkommens mit. Es wird daher die Einstellung des Verfahrens in analoger Anwendung von R 84(1) EPÜ beantragt.".
II. The fact that the patent had lapsed in all designated Contracting States was confirmed by the information available to the European Patent Office.
III. With a communication of the Registry of the Board dated 24 February 2011 the Parties were informed of the situation and that according to Rule 84(1) EPC in combination with Rule 100(1) EPC the proceedings have to be terminated after the lapse of the European patent in all the designated Contracting States in the absence of a request by the Opponent for continuation of the proceedings. The Appellant/Opponent was thus informed in the same communication that the proceedings were only be continued if he filed a request for continuation of the proceedings within two months from the receipt of the communication.
IV. The Appellant/Opponent replied with a letter of 15 March 2011 reading as follows:
"Further to the communication of the Registry in respect of the above-mentioned appeal, the Appellant (opponent) informs the Board of Appeal that he does not request for continuation of the proceedings".
V. Oral proceedings were cancelled by the Board on 31 March 2011.
Reasons for the Decision
Absent any specific provision concerning continuation of appeal proceedings in case a European patent has lapsed in all the designated Contracting States, Rule 100(1) EPC prescribes that the provisions relating to proceedings before the department which has taken the decision impugned shall apply to appeal proceedings. According to Rule 84(1) EPC, if the patent has lapsed in all designated Contracting States, the opposition proceedings may be continued at the request of the opponent within two months of a communication from the EPO informing him of the lapse. On the basis of the above-mentioned Rule 100(1) EPC, Rule 84(1) EPC applies mutatis mutandis to the Appellant/Opponent in appeal proceedings.
In the present case the Appellant/Opponent has informed the Board within the required period that he does not request for continuation of the proceedings.
Therefore, the proceedings have to be terminated (see also G 1/90, OJ EPO 1991, 275, point 7 of the reasons, special case of closure of the proceedings).
For these reasons it is decided that:
The appeal proceedings are terminated.