T 1622/10 () of 23.9.2014

European Case Law Identifier: ECLI:EP:BA:2014:T162210.20140923
Date of decision: 23 September 2014
Case number: T 1622/10
Application number: 03017154.0
IPC class: A01N 37/18
A61F 13/00
A61K 39/00
A61K 9/127
A61K 9/52
A61K 9/56
Language of proceedings: EN
Distribution: D
Download and more information:
Decision text in EN (PDF, 222 KB)
Documentation of the appeal procedure can be found in the Register
Bibliographic information is available in: EN
Versions: Unpublished
Title of application: Adjuvant for transcutaneous immunization
Applicant name: The Government of the United States of America, as
represented by The Secretary of the Army
Opponent name: Nordic Vaccine Technology A/S
Board: 3.3.02
Headnote: -
Relevant legal provisions:
European Patent Convention R 84
European Patent Convention R 100(1)
Keywords: Lapse of patent in all designated states - continuation of appeal proceedings (no)


Cited decisions:
T 0708/01
Citing decisions:

Summary of Facts and Submissions

I. The patent proprietor (appellant) lodged an appeal against the decision of the opposition division dated 4 May 2010, whereby European patent No. 1 384 403 was revoked.

II. By communication of the Board of 16 December 2013, the parties' attention was drawn to the fact that the patent had lapsed with effect for all designated Contracting States and the appellant was asked to inform the Board whether it requested a continuation of the appeal proceedings.

III. The appellant did not reply within the time limit of two months.

Reasons for the Decision

1. If a European patent has lapsed with effect for all the designated Contracting States, opposition proceedings may be continued at the request of the opponent (Rule 84(1) EPC). According to Rule 100(1) EPC, this also applies in appeal proceedings following opposition proceedings. 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 who can request that the appeal proceedings be continued (see decision T 708/01 of 17 March 2005, point 1).

2. In the present case, the notification of the lapse within the meaning of Rule 84(1) EPC was sent to the appellant on 16 December 2013. Thus, the period of two months for requesting the continuation of the appeal proceedings ended on 26 February 2014. The appellant did not reply to the Board's communication during that period. This is interpreted as an indication that the appellant is not willing to request continuation. Under these circumstances, the Board sees no reason to continue the appeal proceedings of its own motion. Therefore, the appeal proceedings are terminated. The ineffective notification of loss of rights of 10 April 2014 is to be disregarded.


For these reasons it is decided that:

The appeal proceedings are terminated.

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