T 0641/16 (Neisserial vaccine/GLAXO) of 10.7.2019

European Case Law Identifier: ECLI:EP:BA:2019:T064116.20190710
Date of decision: 10 July 2019
Case number: T 0641/16
Application number: 03784153.3
IPC class: A61K 39/095
Language of proceedings: EN
Distribution: D
Download and more information:
Decision text in EN (PDF, 245 KB)
Documentation of the appeal procedure can be found in the Register
Bibliographic information is available in: EN
Versions: Unpublished
Title of application: Neisserial vaccine compositions comprising a combination of antigens
Applicant name: GlaxoSmithKline Biologicals s.a.
Opponent name: Novartis Vaccines and Diagnostics S.r.l. (opposition withdrawn)
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 opposition proceedings (no)


Cited decisions:
T 0329/88
T 0708/01
T 0018/13
Citing decisions:

Summary of Facts and Submissions

I. The patent proprietor (appellant) filed an appeal against the decision of the opposition division dated 29 October 2015 revoking European patent No. 1 524 993.

II. The opposition had been withdrawn during opposition proceedings.

III. In a communication of the board pursuant to Rules 84(1) and 100(1) EPC dated 21 March 2019, the appellant was informed that according to the European Patent Register and the national registers of the Contracting States BE, BG, ES and TR the European patent had lapsed with effect for all the designated Contracting States. The appellant was invited to indicate, within two months from notification of the communication, whether a continuation of the appeal proceedings was requested. The appeal proceedings would be terminated if no request for the continuation of the proceedings was filed and the state of the file gave no grounds for the procedure to be continued by the board of its own motion.

IV. No reply from the appellant was received within the set time period. After an enquiry from the registrar of the board, the appellant confirmed with email of 18 June 2019 that the board's communication had been received.

Reasons for the Decision

1. Rule 84(1) EPC provides that "if the European patent has been surrendered in all the designated Contracting States or has lapsed in all those States, the opposition proceedings may be continued at the request of the opponent filed within two months of a communication from the European Patent Office informing him of the surrender or lapse."

2. Pursuant to Rule 100(1) EPC and in the absence of provisions stating otherwise, Rule 84(1) EPC also applies in appeal proceedings following opposition proceedings, i.e. the appeal proceedings may be continued at the request of an opponent-appellant. Furthermore, according to an interpretation argumentum a contrario, if no request for continuation of the proceedings is filed within the set time period and the state of the file gives no grounds for the proceedings to be continued by the board of its own motion, the appeal proceedings will be terminated (see e.g. decisions T 329/88 and T 18/13).

3. However, if - as in the present case - the patent proprietor is the sole appellant, it would be inappropriate to allow an 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, for example, decision T 708/01).

This reasoning applies equally to the present case, in which the opponent is no longer a party to the proceedings.

4. In the present case no request for continuation of the appeal proceedings was received in due time and the board sees no reason to continue the appeal proceedings of its own motion. Hence, the appeal proceedings can be terminated (see point 2 above).


For these reasons it is decided that:

The appeal proceedings are terminated.

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