T 1272/10 (Skin penetration enhancers/US GOVERNMENT) of 11.7.2016

European Case Law Identifier: ECLI:EP:BA:2016:T127210.20160711
Date of decision: 11 July 2016
Case number: T 1272/10
Application number: 03007948.7
IPC class: A61K 39/39
A61K 9/00
C12N 15/11
A61K 39/00
A61K 38/16
A61K 39/02
A61K 39/106
Language of proceedings: EN
Distribution: D
Download and more information:
Decision text in EN (PDF, 239 KB)
Documentation of the appeal procedure can be found in the Register
Bibliographic information is available in: EN
Versions: Unpublished
Title of application: Use of skin penetration enhancers and barrier disruption agents to enhance transcutaneous immune response
Applicant name: The Government of the United States, as
represented by Secretary of the Army
Opponent name: Sagittarius Intellectual Property Consultants Ltd
Board: 3.3.04
Headnote: -
Relevant legal provisions:
European Patent Convention R 84(1)
European Patent Convention R 100(1)
Keywords: Lapse of patent in all designated states - continuation of appeal proceedings (no)


Cited decisions:
T 1733/09
T 1313/10
T 1825/11
Citing decisions:
T 0909/13
T 2020/14

Summary of Facts and Submissions

I. The patent proprietor (appellant) lodged an appeal against the decision of the opposition division to revoke European patent No. 1 356 821.

II. By a communication of the board dated 25 April 2016, the parties' attention was drawn to the fact that the patent had lapsed in all designated Contracting States and the appellant was invited to inform the board within two months from notification of the communication whether it requested a continuation of the appeal proceedings.

III. In reply to the board's communication the appellant notified the board with letter dated 27 June 2016 that it requested no continuation of the appeal proceedings.

Reasons for the Decision

1. If a European patent has lapsed in all designated Contracting States, opposition proceedings may be continued at the request of the opponent (see Rule 84(1) EPC). According to Rule 100(1) EPC, this also applies in appeal proceedings following opposition proceedings.

2. However, if - as in the present case - the patent proprietor is the appellant, it would be inappropriate to allow the opponent(s) (respondent(s)) 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 the patent proprietor as the appellant who can request that the appeal proceedings be continued (see for example decision T 1733/09, point 2 of the Reasons, decision T 1313/10, point 1 of the Reasons, or decision T 1825/11, point 2 of the Reasons and the case law cited in these decisions).

3. As the patent proprietor has explicitly indicated that it does not request a continuation of the appeal proceedings (see section III, above), the appeal proceedings are to be terminated.


For these reasons it is decided that:

The appeal proceedings are terminated.

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