T 0506/14 (Lapse of the patent) of 14.3.2019

Summary of Facts and Submissions

I. The appeal of the patent proprietor is against the decision of the opposition division to revoke the present European patent for insufficiency of disclosure (Articles 100(b) and 83 EPC) with respect to the patent as granted and for lack of inventive step (Article 56 EPC) in respect of the patent as amended according to a second auxiliary request. Moreover, the opposition division did not admit a first auxiliary request into the opposition proceedings on the ground that the amendments did not address all objections under Article 83 EPC.

II. In the statement setting out the grounds of appeal, the appellant requested that the decision under appeal be set aside and that the patent be maintained on the basis of the patent as granted as its main request and the claims of an auxiliary request (identical to the rejected second auxiliary request underlying the appealed decision).

III. In their letters of reply, respondents I and II essentially requested that the appeal be dismissed.

IV. In an annex to the summons to oral proceedings (scheduled for 18 May 2018) pursuant to Article 15(1) RPBA, the board gave its preliminary opinion on the appeal.

V. In a letter dated 5 April 2018, respondent II informed the board that the appellant had gone bankrupt and was "inactive", as evidenced by the annexed extract of the Italian Business Register of 16 March 2018, and had therefore been dissolved. Further, given that no transfer had been registered under Rule 22 EPC, it asked the board to terminate the appeal proceedings.

VI. In a letter of 23 April 2018, the appellant indicated that it would not be attending the scheduled oral proceedings and that the "last due annuities relative to all the national validations" of the patent had not been paid.

VII. In their letters dated 26 and 27 April 2018, respondents II and I also indicated that they would not be attending the scheduled oral proceedings.

VIII. Oral proceedings scheduled for 18 May 2018 were cancelled.

IX. In a communication under Rule 100(2) EPC dated 30 April 2018, the board indicated that, in the absence of any information or evidence relating to a succession, it was assumed that the appellant had ceased to exist and was no longer in a position to act in the appeal proceedings. In the present case, the board had no information on the status of the bankruptcy proceedings. Furthermore, it noted that it appeared from the European patent register, attached to the communication, that the patent had not yet lapsed in seven Contracting States. As a consequence, the information submitted by letter of 23 April 2018, that the last due annuities relative to all the national validations of the patent had not been paid, seemed to be incorrect. Finally, the board invited the appellant to clarify the legal situation of the patent within a two-month time limit from the notification of the communication.

X. With a letter of reply dated 10 July 2018, the appellant's representative filed an e-mail communication in Italian, according to which the patent had been assigned to "VIDEOTEC Srl" (corrected to be "TECNOVIDEO Srl" in a subsequent letter of 26 July 2018) who had no interest to continue these appeal proceedings. Further, the appellant's then representative indicated that he withdrew the representation "for such European Patent".

XI. In a further communication under Rule 100(2) EPC of 11 December 2018, the board indicated that the patent appeared to have lapsed with effect for all designated states according to the European patent register (including the "federated register") in its current version.

Reasons for the Decision

1. Lapse of the patent

In view of the European patent register (including the "federated register") and the indication that the last due annuities relative to all the national validations of the present European patent had not been paid (see point VI above), the opposed patent is considered to have lapsed with effect for all the designated Contracting States.

2. Continuation of the appeal proceedings

2.1 In the present case, the appellant's then representative stated that the appellant had no interest to continue the present appeal proceedings (see point X above). The board considers this indication to be a legal declaration to the effect that there is no legitimate interest in continuing these appeal proceedings.

2.2 Therefore, the board concludes that the present appeal proceedings are to be terminated.

Order

For these reasons it is decided that:

The appeal proceedings are terminated.