T 2370/18 () of 9.9.2021

European Case Law Identifier: ECLI:EP:BA:2021:T237018.20210909
Date of decision: 09 September 2021
Case number: T 2370/18
Application number: 10732359.4
IPC class: F25B 39/04
F28F 1/16
F28F 7/02
Language of proceedings: EN
Distribution: D
Download and more information:
Decision text in EN (PDF, 250 KB)
Documentation of the appeal procedure can be found in the Register
Bibliographic information is available in: EN
Versions: Unpublished
Applicant name: Termal SRL
Board: 3.2.03
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 0708/01
T 2365/17
Citing decisions:

Summary of Facts and Submissions

I. The present appeal lies from the decision of the opposition division dated 12 July 2018 revoking European patent EP-B-2 454 537.

II. This decision was appealed by the patent proprietor (in the following: the appellant).

III. The Board informed the patent proprietor as the only appellant in this case with letter of 25 May 2021 that, according to the information in the European Patent Register and in the register of the "Deutsches Patent und Markenamt (DPMA)", the European patent had lapsed in all designated contracting states.

The appellant was asked to state within two months from notification of the Board's communication if they requested that the appeal proceedings be continued. Furthermore, the appellant was informed that, in the absence of such a request, the appeal proceedings would be terminated without a decision on the merits of the case.

IV. No reply of the appellant has been received within the prescribed time limit.

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 (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 only 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 is applied mutatis mutandis in such opposition appeal proceedings, so that it is the patent proprietor who can request that the appeal proceedings be continued (T 2365/17, point 2 of the Reasons; T 708/01, point 1 of the Reasons; see also Case Law of the Boards of Appeal of the EPO, 9th edition, 2019, III.Q.1.2.2).

2. However, the appellant has not filed any request to continue the appeal proceedings within the time limit set in the communication dealing with the lapse of the European patent. The Board does not see any reason to continue the proceedings.

3. In view of the above, the appeal proceedings are to be terminated without a decision on the merits of the case.


For these reasons it is decided that:

The appeal proceedings are terminated.

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