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T 0412/19 06-07-2022
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Fitness assay and methods for reducing resistance of HIV to therapy
The United States of America, represented by the Secretary, Department of Health and Human Services
The Board of Trustees of the University of Illinois
I. This decision concerns the appeal filed by the opponent (appellant) against the decision of the opposition division to reject the opposition against European patent no. 2 336 134 (patent).
II. The parties were summoned to oral proceedings to be held on 27 May 2022.
III. By letter dated 26 April 2022, the patent proprietors stated that the term of the patent had expired and that the patent had consequently lapsed in all designated contracting states.
IV. On 3 May 2022, the board issued a communication inviting the appellant, pursuant to Rule 84(1) EPC, to indicate whether or not it requested continuation of the appeal proceedings.
V. By letter dated 9 May 2022, the appellant stated that it did not request continuation of the appeal proceedings, that it agreed that the appeal proceedings be terminated and that it expected the oral proceedings to be cancelled.
VI. The board then cancelled the summons to oral proceedings.
1. Rule 84(1) EPC which applies to appeal proceedings (Rule 100(1) EPC) provides that if the European patent has been surrendered or has lapsed in all designated contracting states the proceedings may (only) be continued at the request of the opponent filed within two months of a communication from the European Patent office informing of the surrender or lapse.
2. In the case at hand, the appellant has not questioned the patent proprietors' statement that the patent has lapsed in all designated contracting states and the board sees no reason to doubt that the statement is correct either. Furthermore, since the appellant refrained from filing a request under Rule 84(1) EPC (see point V above), the appeal proceedings are terminated.
For these reasons it is decided that:
The appeal proceedings are terminated.