T 1825/11 () of 14.7.2015

European Case Law Identifier: ECLI:EP:BA:2015:T182511.20150714
Date of decision: 14 July 2015
Case number: T 1825/11
Application number: 06805884.1
IPC class: C07K 16/26
Language of proceedings: EN
Distribution: D
Download and more information:
Decision text in EN (PDF, 240.285K)
Documentation of the appeal procedure can be found in the Register
Bibliographic information is available in: EN
Versions: Unpublished
Title of application: Antibodies against 25-Hydroxyvitamin D
Applicant name: Roche Diagnostics GmbH
F.Hoffmann-La Roche AG
Opponent name: BioMérieux
Immunodiagnostic Systems Limited
Abbott Laboratories
Immundiagnostik AG
Board: 3.3.04
Headnote: -
Relevant legal provisions:
European Patent Convention R 84(1)
European Patent Convention R 100(1)
Keywords: Lapse of patent in all designated states - termination of appeal proceedings
Catchwords:

-

Cited decisions:
T 0329/88
T 0708/01
T 0749/01
T 0520/10
Citing decisions:
T 1272/10

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.

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