In T 1213/97 the patent had expired for all designated contracting states during the opposition appeal proceedings. The appellant (opponent) requested a decision on the state of the file which implied a request for the continuation of the appeal proceedings for the purpose of issuing a decision. The board exercised its power under R. 60(1) EPC 1973 to continue the appeal proceedings.
In T 598/98 too the patent had lapsed for all designated contracting states since a time subsequent to the opponent's filing of the appeal, and the appellant (opponent) had requested continuation of the proceedings. The request was allowed. The board maintained that the opponent's legitimate interest in retroactive revocation was one of the elements that could be a factor in the board's decision to terminate or continue the proceedings under R. 60 EPC 1973. It also stated that the general interest in a central ruling on the patentability of an invention claimed in a patent did at any rate justify continuing the proceedings until a final decision was taken if the case was essentially ready for decision at the time when the patent lapsed and if it also made a significant difference to the patent's fate whether a decision was taken on the merits or the proceedings were simply terminated.
In contrast to the case law cited above, T 708/01 concerns the situation where the patent proprietor had appealed against the decision of the opposition division to revoke the patent. The patent had expired in all the designated contracting states. The board decided that R. 60(1) EPC 1973 only applied, if at all, to the extent that the appellants were required to state whether they wished to maintain the appeal. The proprietors could also apply to have the patent maintained in amended form with effect only for the past. In the case in point the appellants stated that they wished to maintain the appeal. The board decided to continue the proceedings.