T 0660/13 (Lapse of the patent) of 7.7.2016

European Case Law Identifier: ECLI:EP:BA:2016:T066013.20160707
Date of decision: 07 July 2016
Case number: T 0660/13
Application number: 05858107.5
IPC class: C12N 9/52
C12Q 1/37
G01N 33/542
Language of proceedings: EN
Distribution: D
Download and more information:
Decision text in EN (PDF, 244.105K)
Documentation of the appeal procedure can be found in the Register
Bibliographic information is available in: EN
Versions: Unpublished
Title of application: ASSAY FOR DETERMINING CLOSTRIDIAL TOXIN ACTIVITY COMBINING FRET AND FLUORESCENCE POLARIZATION
Applicant name: ALLERGAN, INC.
Opponent name: Merz Pharma GmbH & Co. KGaA
Board: 3.3.02
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 0165/95
T 0708/01
T 0749/01
T 0436/02
T 0289/06
Citing decisions:
-

Summary of Facts and Submissions

I. Both the patent proprietor (hereinafter appellant I) and the opponent (hereinafter appellant II) lodged an appeal against the interlocutory decision of the opposition division posted on 4 January 2013 maintaining European patent no. 1 807 698 in amended form.

II. By a communication dated 4 March 2016, the board informed the appellants that the patent in suit had lapsed with effect for all the designated Contracting States and invited the appellants to inform the board, within two months from notification of the communication, whether they requested a continuation of the appeal proceedings (Rules 84(1) and 100(1) EPC).

III. No reply was received within the set time period.

Reasons for the Decision

1. Rule 84(1) EPC provides that if "the European patent has been surrendered in all the designated Contracting States or has lapsed in all those States, the opposition proceedings may be continued at the request of the opponent filed within two months of a communication from the European Patent Office informing him of the surrender or lapse". According to Rule 100(1) EPC, Rule 84(1) EPC applies also in appeal proceedings following opposition proceedings.

2. If - as in the present case - both, the opponent and the patent proprietor have lodged an appeal, it would be inappropriate to allow the appellant-opponent only 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 so that it is also the appellant-patent proprietor who can request that the appeal proceedings be continued (see decision T 708/01 of 17 March 2005, point 1).

3. According to an interpretation argumentum e contrario, if no request for continuation of the proceedings is filed within the set time period and the state of the file gives no grounds for the proceedings to be continued by the board of its own motion, the appeal proceedings are terminated (see decisions T 329/88 of 22 June 1993; T 165/95 of 7 July 1997; T 749/01 of 23 August 2002; T 436/02 of 25 June 2004; T 289/06 of 17 December 2007).

4. In the present case, the notification of the lapse within the meaning of Rule 84(1) EPC was sent to the appellants on 4 March 2016. Thus, the period of two months for requesting the continuation of the appeal proceedings ended on 14 May 2016 (cf. Rule 126(2) EPC). No request for continuation of the appeal proceedings was received within the set time period. Hence, the appeal proceedings have to be terminated (cf. point 3 supra).

Order

For these reasons it is decided that:

The appeal proceedings are terminated.

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