T 2985/19 () of 3.3.2021

European Case Law Identifier: ECLI:EP:BA:2021:T298519.20210303
Date of decision: 03 March 2021
Case number: T 2985/19
Application number: 11805862.7
IPC class: A61K8/22
Language of proceedings: EN
Distribution: D
Download and more information:
Decision text in EN (PDF, 232 KB)
Documentation of the appeal procedure can be found in the Register
Bibliographic information is available in: EN
Versions: Unpublished
Applicant name: Kao Germany GmbH
Opponent name: Henkel AG & Co. KGaA
Board: 3.3.10
Headnote: -
Relevant legal provisions:
European Patent Convention R 84(1) (2007)
European Patent Convention R 100(1) (2007)
Keywords: Lapse of patent in all designated states - termination of appeal proceedings


Cited decisions:
T 0520/10
Citing decisions:

Summary of Facts and Submissions

I. European patent EP 2 658 509 was revoked by the opposition division, and has lapsed in all designated states.

II. The patent proprietor is the sole appellant in these appeal proceedings.

III. In a communication, the board informed the parties of the lapse of the patent. Under Rule 84(1) EPC, the opposition appeal proceedings could be continued at the request of the opponent, but also upon request of the patent proprietor by way of an analogous application of Rule 84(1) EPC (T 520/10).

Unless such request was filed within two months, the appeal would be terminated without a decision on the merits, and the decision of the opposition division would become final.

IV. None of the parties requested continuation of the proceedings within this time limit.

Reasons for the Decision

1. The appeal is admissible.

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 opposition appeal proceedings.

If the patent proprietor is the appellant, Rule 84(1) EPC has to be applied by analogy (T 520/10). In the present case, the patent proprietor could thus request that the appeal proceedings be continued.

2. No request in that respect was filed within the time limit set. The proceedings are thus terminated without a decision on the merits of the case (Case Law of the Boards of Appeal, 9th Ed. 2009, III.Q.1.2).


For these reasons it is decided that:

The appeal proceedings are terminated.

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