This case concerns an appeal against a decision by the Opposition Division not to continue with the opposition after the patent in question had lapsed in all contracting states.
The outcome of the actual Opposition was an interlocutory decision to maintain the patent in amended form. The opponent filed an appeal against this decision, even though the EPO had already sent out an R.84(1) communication informing the opponent of the lapse of the patent and inviting him to indicate within 2m if the proceedings should be continued. The Opponent responded to this communication in time and indicated that proceedings should be continued. Thereafter, the opponent withdrew the appeal against the interlocutory decision.
After withdrawal of the appeal, the interlocutory decision became final. To complete the process, the patent proprietor must comply with the acts of R 81(2) - pay fee; file a translation of amended claims. If not done in time, the EPO must send a communication under R. 82(3) giving the proprietor a further period in which to preform these acts, upon payment of a surcharge. The consequence of failure to respond to this communication is revocation of the patent.
Possibly because of the somewhat unusual sequence of events, the EPO did not send out an R. 82(3), but rather informed the proprietor and the opponent that the opposition proceedings would be discontinued because opponent had not filed a request for continuation of the proceedings. This was a mistake on their part, violating the opponent's right to be heard. The opponent was also adversely affected, because discontinuation of an opposition leaves rights outstanding while revocation has retroactive legal effects.
The decision under appeal was set aside and the appeal fee was reimbursed.