T 0520/10 (Protein expression/CELLTECH) of 11.6.2013

European Case Law Identifier: ECLI:EP:BA:2013:T052010.20130611
Date of decision: 11 June 2013
Case number: T 0520/10
Application number: 93917891.9
IPC class: C12N 15/13
Language of proceedings: EN
Distribution: D
Download and more information:
Decision text in EN (PDF, 102.125K)
Documentation of the appeal procedure can be found in the Register
Bibliographic information is available in: EN
Versions: Unpublished
Title of application: Protein expression system
Applicant name: Celltech Therapeutics Limited
Opponent name: Genentech, Inc.
Monsanto Company
Novartis Vaccines and Diagnostics, Inc.
Board: 3.3.08
Headnote: -
Relevant legal provisions:
European Patent Convention R 84(1)
European Patent Convention R 100(1)
Keywords: Lapse of patent in all designated states (yes)
Patent proprietor sole appellant
No request by patent proprietor to continue appeal proceedings
Termination of appeal proceedings
Catchwords:

-

Cited decisions:
T 0708/01
T 0606/10
Citing decisions:
T 1733/09
T 1964/10
T 1825/11

Summary of Facts and Submissions

I. The patent proprietor (appellant) lodged an appeal against the decision of the opposition division dated 23 December 2009, whereby European patent No. 0 651 803, which had been granted on European application No. 93917891.9, was revoked.

II. By communication of the Board of 6 May 2013, the parties' attention was drawn to the fact that the patent had meanwhile lapsed in all designated Contracting States and the appellant was asked to inform the Board whether it requested a continuation of the appeal proceedings.

III. In reply to the Board's communication, the appellant has notified the Board with letter of 28 May 2013 that it does not request a continuation of the appeal proceedings.

Reasons for the decision

1. If a European patent has lapsed in all designated Contracting States, opposition proceedings may be continued at the request of the opponent (see Rule 84(1) EPC). According to Rule 100(1) EPC, this also applies in appeal proceedings following opposition proceedings. However, if - as in the present case - the patent proprietor is the appellant, it would be inappropriate to allow the opponent(s) (respondent(s)) to decide whether the appeal proceedings shall be continued. For this reason, Rule 84(1) EPC has to be applied mutatis mutandis in such opposition appeal proceedings (see also the case law cited in decision T 606/10 of 12 May 2011, point 1.3 of the reasons), so that it is the patent proprietor who can request that the appeal proceedings be continued (see decision T 708/01 of 17 March 2005, point 1 of the Reasons).

2. As the patent proprietor has explicitly indicated that it does not request a continuation of the appeal proceedings (see Section III, supra), the appeal proceedings are to be terminated.

ORDER

For these reasons it is decided that:

The appeal proceedings are terminated.

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