| European Case Law Identifier: | ECLI:EP:BA:2024:T138822.20240808 | ||||||||
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| Date of decision: | 08 August 2024 | ||||||||
| Case number: | T 1388/22 | ||||||||
| Application number: | 11801741.7 | ||||||||
| IPC class: | A61K 39/395 A61P 35/00 C07K 16/30 C07K 16/28 |
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| Language of proceedings: | EN | ||||||||
| Distribution: | D | ||||||||
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| Title of application: | Antibodies against human CD39 and use thereof | ||||||||
| Applicant name: | Orega Biotech INSERM - Institut National de la Santé et de la Recherche Médicale |
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| Opponent name: | AbbVie Inc. Tizona Therapeutics D Young & Co LLP Boult Wade Tennant LLP |
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| Board: | 3.3.04 | ||||||||
| 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 present appeal was lodged by the patent proprietors against the decision of the opposition division revoking the patent.
II. As apparent from the entries in the European Patent Register, European patent EP 2 654 789 has lapsed with effect for all the designated Contracting States in the course of the present appeal proceedings.
III. With a communication dated 27 February 2024 the board gave the patent proprietors the opportunity to request continuation of the appeal proceedings within two months from the notification of this communication.
IV. No reply by the patent proprietors was received. The three-month period specified in Rule 133(1) EPC has also expired.
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 (see Rule 84(1) EPC). According to Rule 100(1) EPC, this also applies in appeal proceedings following opposition proceedings. However, if - as in the present case - the patent proprietors are the appellants, it would be inappropriate to allow the opponent(s) (respondent(s)) to decide whether the appeal proceedings shall be continued. For this reason, Rule 84(1) EPC has to be applied mutatis mutandis in such opposition appeal proceedings (see also the case law cited in decision T 606/10 of 12 May 2011, point 1.3 of the Reasons), so that it is the patent proprietors who can request that the appeal proceedings be continued (see also decision T 708/01 of 17 March 2005, point 1 of the Reasons and T 520/10 of 11 June 2013, point 1 of the Reasons).
2. As the patent proprietors have not replied within the given time limit to the communication by the board providing the opportunity to request continuation of the appeal proceedings (see Section III., supra), the appeal proceedings are to be terminated.
Order
For these reasons it is decided that:
The appeal proceedings are terminated.
