T 0182/13 (Moxifloxacin HCl polymorphs/CHEMI) of 25.8.2017

European Case Law Identifier: ECLI:EP:BA:2017:T018213.20170825
Date of decision: 25 August 2017
Case number: T 0182/13
Application number: 04791330.6
IPC class: C07D 471/04
A61K 31/437
A61P 31/04
Language of proceedings: EN
Distribution: D
Download and more information:
Decision text in EN (PDF, 237 KB)
Documentation of the appeal procedure can be found in the Register
Bibliographic information is available in: EN
Versions: Unpublished
Applicant name: CHEMI S.p.A.
Opponent name: Dr. Reddy's Laboratories Ltd.
Board: 3.3.01
Headnote: -
Relevant legal provisions:
European Patent Convention R 84(1)
European Patent Convention R 100(1)
Keywords: -


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 posted on 21 November 2012 concerning maintenance of the European Patent No. 1 685 130 in amended form based on the set of claims filed as auxiliary request 2 at the oral proceedings of 12 October 2012.

II. By communication of the board of 11 April 2017, the parties' attention was drawn to the fact that the patent had meanwhile lapsed in all designated contracting states, and the appellant was asked to inform the board within a time limit of two months whether it requested a continuation of the appeal proceedings.

III. The appellant did not reply within the given time limit. On 25 August 2017, the registrar of the board contacted the appellant by telephone. The appellant confirmed that it had received the board's communication dated 11 April 2017.

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. However, if, as in the present case, the patent proprietor is the appellant, it would be inappropriate to allow the opponent (respondent) 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 e.g. decision T 708/01 of 17 March 2005, point 1).

2. The appellant (patent proprietor) did not file any requests with respect to the continuation of appeal proceedings within the prescribed time limit. This is interpreted as meaning that the appellant did not wish 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.


For these reasons it is decided that:

1. The appeal proceedings are terminated.

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