Monday, September 03, 2018 T 1403/16 Can an opponent file a request for re-establishment having not timely responded to a R.84(1) invitation

The opposition division noted that the patent in suit had lapsed in all the designated contracting states and issued a communication under R.84(1) EPC inviting the opponent to file, within two months, a request for continuation of the opposition proceedings. By mistake, the opponent's representative failed to timely file the request under R.84(1). A request for re-establishment was filed. It was argued that re-establishment should be allowed in line with the exceptions given by the Enlarged Board in G 1/86. The opposition division did not see a reason to extend the scope of G 1/86 from opposition appeal proceedings to opposition proceedings and decided to declare the re-establishment request inadmissible and to discontinue the opposition. The opponent appealed. 

The Board of Appeal did not go into the issue whether the scope of re-establishment should be extended but came to the concluson that re-establishment would anyhow not apply to missing a time limit under R.84(1). Missing such a time limit does not have a direct loss as a consequence. The opposition division may decide to discontinue the opposition proceedings if no timely request is filed, but this is a separate decision. Such a decision can be appealed.

Friday, June 08, 2018 T2020/14 - Who can request continuation of opposition appeal proceedings after lapse of a patent?

In this case the BoA terminated the opposition appeal proceedings in which the patent proprietor was the sole appellant because the patent in suit granted in amended form in opposition had been surrendered with effect for all designated Contracting States and the proprietor had not indicated to continue with the proceedings.

According to Rule 84(1), EPC if a European patent has been surrendered or lapsed in all designated Contracting States the opposition proceedings may be continued at the request of the opponent. This applies also to appeal opposition proceedings according to R. 100(1). 

However, since in the present case the only appellant was the patent proprietor, the BoA states that it would be inappropriate to allow the opponent to decide.   

Friday, July 15, 2016 T 1272/10 Continuing opposition appeal proceedings after lapse of the patent?

If in opposition proceedings the patent turns out to have fully lapsed, the opposition proceedings are only continued at the request of the opponent [R.84(1)]. The same principle applies in opposition appeal proceedings [R.100(1)]. But does this make sense if the opponent has not appealed? The Board does not think so.