| European Case Law Identifier: | ECLI:EP:BA:2020:T154815.20200310 | ||||||||
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| Date of decision: | 10 March 2020 | ||||||||
| Case number: | T 1548/15 | ||||||||
| Application number: | 09004768.9 | ||||||||
| IPC class: | A61K 31/335 A61L 31/16 A61P 7/00 A61F 2/06 A61K 31/337 A61K 31/4035 A61K 31/407 A61L 31/14 A61K 31/04 A61K 31/131 A61K 31/135 A61K 31/165 A61K 31/17 A61K 31/365 A61K 31/40 A61K 31/4025 A61K 31/519 A61K 31/551 A61K 31/704 A61K 47/48 |
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| Language of proceedings: | EN | ||||||||
| Distribution: | D | ||||||||
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| Title of application: | Implantable device comprising taxol in crystalline form for the inhibition or prevention of restenosis | ||||||||
| Applicant name: | Boston Scientific Limited | ||||||||
| Opponent name: | Terumo Kabushiki Kaisha | ||||||||
| Board: | 3.3.01 | ||||||||
| Headnote: | - | ||||||||
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| Keywords: | Lapse of patent in all designated states - continuation of appeal proceedings (no) | ||||||||
| Catchwords: |
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Summary of Facts and Submissions
I. The patent proprietor (appellant) filed an appeal against the decision of the opposition division taken at the oral proceedings of 20 April 2015 and posted on 30 June 2015 revoking European patent No. 2 098 230.
II. The patent has meanwhile lapsed in all designated Contracting States.
III. By a communication dated 19 February 2020, the board drew the parties' attention to Rule 84(1) EPC and invited the appellant to inform the board within two months from notification of the communication whether it requested that the appeal proceedings be continued. Otherwise, the board intended to terminate the appeal proceedings without a decision on the merits of the appeal.
IV. With a letter dated 3 March 2020, the appellant stated that it did not request continuation of the appeal proceedings and that it agreed to the termination of the appeal proceedings. It also requested reimbursement of the appeal fee pursuant to Rule 103 EPC.
Reasons for the Decision
1. 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). It follows from Rule 100(1) EPC that this also applies in appeal proceedings following opposition proceedings.
2. However, if, as in the present case, the patent proprietor is the appellant, it would be inappropriate to allow the opponent to determine whether or not the appeal proceedings are to be continued. For this reason, Rule 84(1) EPC has to be applied in such cases so that the patent proprietor can request that the appeal proceedings be continued (see Case Law of the Boards of Appeal, ninth edition, III.Q.1.2.2).
3. The patent proprietor has not requested continuation of the appeal proceedings and has explicitly agreed to the the termination of the appeal proceedings. The appeal proceedings are consequently terminated by this decision of the board.
4. Regarding the reimbursement of the appeal fee, the agreement by the proprietor to terminate the appeal proceedings is equivalent to a withdrawal of the appeal so that Rule 103 EPC is applicable. As the withdrawal of the appeal has occurred at least four weeks before the date set for oral proceedings, the appeal fee will be reimbursed at 50%, pursuant to Rule 103(2)(a) EPC.
Order
For these reasons it is decided that:
1. The appeal proceedings are terminated.
2. The appeal fee is to be reimbursed at 50%.
