T 1878/16 () of 18.9.2018

European Case Law Identifier: ECLI:EP:BA:2018:T187816.20180918
Date of decision: 18 September 2018
Case number: T 1878/16
Application number: 09785999.5
IPC class: A61B 5/1455
A61B 5/00
G06F 19/00
Language of proceedings: EN
Distribution: D
Download and more information:
Decision text in EN (PDF, 227 KB)
Documentation of the appeal procedure can be found in the Register
Bibliographic information is available in: EN
Versions: Unpublished
Applicant name: Nellcor Puritan Bennett Ireland
Opponent name: Alopex Patentverwertungs-GmbH & Co. KG
Board: 3.2.02
Headnote: -
Relevant legal provisions:
European Patent Convention R 84(1)
European Patent Convention R 100(1)
European Patent Convention R 133(1)
Keywords: Lapse of the patent in all desginated Contracting States - termination of appeal proceedings


Cited decisions:
T 0598/98
Citing decisions:

Summary of Facts and Submissions

I. The appeal of the opponent is directed against the decision of the Opposition Division posted on 3 June 2016 rejecting the opposition filed against European patent Nr. 2 339 956 pursuant to Article 101(2) EPC.

II. Inspection of the Register had shown that the patent lapsed in all designated Contracting States.

III. With communication of 12 June 2018 pursuant to Rule 84(1) EPC, sent with advice of delivery, the appellant-opponent was requested to inform the Board within a time-limit of two months after notification of the communication, whether he requested the appeal proceedings to be continued or not.

IV. No answer to that communication was received within the two months' time-limit.

V. On 3 September 2018 the registrar of the Board contacted the representative of the appellant-opponent who confirmed that no reply to the above communication had been delivered to a recognised postal service provider in due time before expiry of the period.

Reasons for the Decision

1. When a European patent has lapsed in all designated contracting states, in analogy to Rule 84(1) EPC, which is to be applied in opposition appeal proceedings pursuant to Rule 100(1) EPC, the opposition appeal proceedings may be continued at the request of appellant-opponent filed within two months of a communication from the European Patent Office informing him of the lapse (e.g. T 598/98, point 1 of the Reasons).

2. Since the representative confirmed that no reply to the communication had been delivered to a recognised postal service provider in due time before expiry of the period, the expiry of the time limit of three months pursuant to Rule 133 EPC has not to be waited before proceeding further.

3. A continuation of the appeal proceedings was not requested so that the appeal proceedings are to be terminated.


For these reasons it is decided that:

The appeal proceedings are terminated.

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