T 0167/14 (Stable aqueous proteins/ARECOR) of 23.2.2018

European Case Law Identifier: ECLI:EP:BA:2018:T016714.20180223
Date of decision: 23 February 2018
Case number: T 0167/14
Application number: 06764894.9
IPC class: C12N 9/96
A61K 39/39
Language of proceedings: EN
Distribution: D
Download and more information:
Decision text in EN (PDF, 246 KB)
Documentation of the appeal procedure can be found in the Register
Bibliographic information is available in: EN
Versions: Unpublished
Applicant name: Arecor Limited
Opponent name: CSL Behring GmbH
Bureau Ottelohe, J.R.
Sanofi-Aventis Deutschland GmbH
Board: 3.3.08
Headnote: -
Relevant legal provisions:
European Patent Convention R 84(1)
European Patent Convention R 100(1)
Keywords: Lapse of patent in all designated states - termination of appeal proceedings


Cited decisions:
T 0329/88
T 0949/09
T 0520/10
T 0480/13
Citing decisions:

Summary of Facts and Submissions

I. The appellant (patent proprietor) lodged an appeal against the decision of an opposition division posted on 29 November 2013, whereby the European patent No. 1 899 462 was revoked.

II. By communication of the board of 12 July 2017, the parties' attention was drawn to the fact that the patent had meanwhile lapsed in all designated Contracting States and the respondents (opponents) were asked to inform the board within a period of two months whether they requested a continuation of the appeal proceedings. None of the three respondents filed a request for a continuation of the appeal proceedings.

III. By a communication of the board of 30 November 2017, the appellant was asked to inform the board within a period of two months whether it requested a continuation of the appeal proceedings.

IV. By letter dated 8 December 2017, the appellant declared that it did not wish to proceed with the appeal.

Reasons for the Decision

1. Pursuant to Rule 84(1) EPC in conjunction with Rule 100(1) EPC, appeal proceedings may be continued after the European patent has lapsed, if the opponent files a request to this effect within two months of a communication informing him/her of the lapse (see, inter alia, decisions T 329/88 of 22 June 1993; T 949/09 of 17 October 2012; and T 480/13 of 5 November 2014).

2. If, as in the present case, the patent proprietor is the appellant, it would be inappropriate to allow the opponents/respondents 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 appellant/patent proprietor who can request that the appeal proceedings be continued (see T 520/10 of 11 June 2013).

3. As the patent proprietor/appellant has explicitly indicated that it does not request a continuation of the appeal proceedings (see Section IV supra), the appeal proceedings are terminated.


For these reasons it is decided that:

The appeal proceedings are terminated.

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