T 1266/09 (Surrender of the patent/GE Healthcare) of 31.7.2012

European Case Law Identifier: ECLI:EP:BA:2012:T126609.20120731
Date of decision: 31 July 2012
Case number: T 1266/09
Application number: 00956719.9
IPC class: A61K 51/12
Language of proceedings: EN
Distribution: D
Download and more information:
Decision text in EN (PDF, 91 KB)
Documentation of the appeal procedure can be found in the Register
Bibliographic information is available in: EN
Versions: Unpublished
Title of application: Composition comprising radiopharmaceutical metal complexes in silica-coated containers
Applicant name: GE Healthcare Limited
Opponent name: MALLINCKRODT, INC.
Board: 3.3.02
Headnote: -
Relevant legal provisions:
European Patent Convention R 84(1)
European Patent Convention R 100(1)
Keywords: Continuation of appeal proceedings after surrender of the patent in all the designated Contracting States (no)


Cited decisions:
G 0002/97
R 0004/09
T 0708/01
Citing decisions:

Summary of Facts and Submissions

I. The appeal lies from the decision of the Opposition division revoking the European patent No. 1 207 911.

II. In its communication pursuant to Rule 100(2) EPC posted on 18 November 2011, the Board noted that the European patent No. 1 207 911 had been surrendered in all the designated Contracting States. Referring to the decision T 708/01 of 17 March 2005, the Board invited the appellant to state whether it wished to maintain the appeal and to justify why proceedings should continue. No reply was received within the time limit set.

Reasons for the Decision

1. The European patent No. 1 207 911 has been surrendered in all the designated Contracting States. By analogy to Rule 84(1) together with Rule 100(1) EPC, the appeal proceedings may be continued, provided that the appellant (patent proprietor) maintains its appeal and motivates why proceedings should continue (see T 708/01 of 17 March 2005, points 1.1 to 1.4 of the Reasons).

2. Users of the European patent system have the responsi bility to take all necessary steps to avoid a loss of rights (G 2/97, OJ EPO 1999, 123, point 4.2 of the Reasons; R 4/09 of 30 April 2010, point 2.3.2 of the Reasons). Since no reply to the Board's communication was received within the time limit set, the Board sees no justification for continuing the appeal proceedings of its own motion in the absence of any sign of interest of the appellant in these proceedings.


For these reasons it is decided that:

The proceedings before the Board of Appeal are discontinued.

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