6.3. Cases concerning termination of opposition appeal proceedings

In T 329/88 the board of appeal applied R. 60(1) EPC 1973 by analogy to appeal proceedings and terminated the proceedings without any decision on the issues, since during the appeal proceedings the European patent had expired in all the designated contracting states and the appellant (opponent) had not requested continuation of the appeal proceedings (see also T 762/89, T 714/93, T 165/95, T 749/01, T 436/02, T 289/06, T 949/09). It should be noted here that termination of proceedings had no repercussions corresponding to those of revocation under Art. 68 EPC 1973; instead, it was based on the fact that the patent had already expired without ab initio effect for each designated contracting state.

If the appellant (opponent) expressed doubts concerning a respondent’s (patent proprietor's) claim that a patent had lapsed or been surrendered, then the lapse had to be registered with the EPO or properly proved. Otherwise, R. 60(1) EPC 1973 was not applicable and the appeal procedure continued (T 194/88, T 682/91, T 833/94, T 201/04).

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