| European Case Law Identifier: | ECLI:EP:BA:2019:T105913.20190401 | ||||||||
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| Date of decision: | 01 April 2019 | ||||||||
| Case number: | T 1059/13 | ||||||||
| Application number: | 10158200.5 | ||||||||
| IPC class: | A61M 5/158 A61M 5/20 A61M 5/32 |
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| Language of proceedings: | EN | ||||||||
| Distribution: | D | ||||||||
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| Title of application: | Insertion device for an insertion set | ||||||||
| Applicant name: | Medtronic MiniMed, Inc. | ||||||||
| Opponent name: | Unomedical A/S | ||||||||
| Board: | 3.2.02 | ||||||||
| Headnote: | - | ||||||||
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| Keywords: | Expiry of the patent - continuation of appeal proceedings (no) | ||||||||
| Catchwords: |
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Summary of Facts and Submissions
I. The patent proprietor (appellant) lodged an appeal against the decision of the opposition division to revoke European patent No. 2 201 969.
II. The patent is based on European patent application No. 10 158 200.5 filed on 18 December 1998. It follows that the term of the patent pursuant to Article 63(1) EPC expired on 18 December 2018.
III. By a communication of the Board dated 16 January 2019 pursuant to Rule 100(2) EPC, the parties' attention was drawn to the fact that the patent had lapsed in all designated Contracting States and the appellant was invited to inform the Board within two months from notification of the communication whether it requested a continuation of the appeal proceedings or not.
IV. No answer to that communication was received within the two-months time limit.
V. On 28 March 2019 the registrar of the Board contacted the representative of the appellant who confirmed that no reply to the above communication had been delivered to a recognised postal service provider in due time before expiry of the period.
Reasons for the Decision
1. In analogy to Rule 84(1) EPC, which is to be applied in opposition appeal proceedings (Rule 100(1) EPC), when a European patent has lapsed in all designated Contracting States, opposition appeal proceedings may be continued at the request of the patent proprietor filed within two months of a communication from the European Patent Office informing him of the lapse (T 708/01, point 1 of the Reasons). In the present case, the term of the patent pursuant to Article 63(1) EPC expired.
2. Since the appellant's representative confirmed that no reply to the communication had been delivered to a recognised postal service provider in due time before expiry of the period, the expiry of the time limit of three months pursuant to Rule 133 EPC has not to be waited before proceeding further.
3. A continuation of the appeal proceedings was not requested so that the appeal proceedings are to be terminated (T 829/11, T 436/02, T 749/01).
Order
For these reasons it is decided that:
The appeal proceedings are terminated.
