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Guidelines for Examination

 
 

5.1 Continuation in the case of surrender or lapse of the patent

If the European patent has been surrendered or has lapsed for all the designated States, the opposition proceedings may be continued at the request of the opponent filed within two months after the date on which the Opposition Division informed the opponent of the surrender or lapse. Evidence of the lapse must generally be provided by submitting extracts from the Patent Registers of the designated Contracting States.

Surrender or lapse has immediate non-retroactive effect (i.e. patent protection ceases on the date of surrender or lapse), whereas a revoked patent is deemed to have had no effect from the outset (Art. 68). So the opponent may still have an interest in the revocation of a lapsed or surrendered patent.

If, in the case of a request for continuation of the proceedings, the proprietor of the patent has renounced before the competent authorities in the designated states all rights conferred by the patent with ab initio and universal effect, or if no request for continuation has been received within the time limit, the opposition proceedings will be closed. The decision to close the proceedings will be communicated to the parties.

If, instead, the proprietor of the patent declares to the EPO that he surrenders/abandons/renounces the patent, the EPO will interpret this as a request for revocation of the patent. A declaration by the proprietor that he is surrendering the patent for all the designated Contracting StatesA statement by the proprietor making it unambiguously clear that he no longer wishes his patent to be maintained is considered to be a request for its revocation, irrespective of the wording used (T 68/90T 237/86). For details of the procedure to be followed, see D‑VIII, 1.2.5.

References

Rule 84(1)