Wednesday, 20 April 2016

Mere Announcements are Not Enough - 7 W (pat) 81/14

The decision 7 W (pat) 81/14  relates to the request of an opponent to refund the appeal fee. The patentee had indicated to abandon the patent subject to the opposition by non-payment of the annuities and to not to derive any rights from the patent for the past.  The opposition division has then issued a decision to close the case and to consider the case as settled (Erledigung). The opponent filed an appeal and, in the course of the appeal procedure, the patent lapsed and the patentee waived (Verzicht) the patent for the future and the past.

The Bundespatengericht asserts that the decision suffers from a fundamental deficiency because the mere announcement to let the application lapse cannot be equated to a binding waiver such that the case had indeed not been settled when the decision was issued. The appeal fee was refunded.

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