As the year comes to an end, I found the present decision quite appropriate.
The patent proprietor filed an appeal (in December 2008) after the Opposition Division revoked its patent.
The Board summoned the parties to oral proceedings (OPs) to be held on August 9, 2012.
With a letter dated June 1, 2012, the representative on record for the patent proprietor informed the board to the effect that there was no longer any validated patent in force based on the patent in suit and that the patent proprietor had gone bankrupt and no longer existed. The representative further stated that he would not attend the OPs.
The board issued a further communication to the parties, noting that no evidence had been filed in respect of the alleged bankruptcy of the patent proprietor. However, publicly available commercial register information retrieved from the Internet site www.allabolag.se appeared to confirm the information provided by the appellant’s representative and a copy of this information was annexed to the communication.
It was further noted that as no transfer had been registered under R 22 (applicable during opposition proceedings according to R 85), Nextlimit AB or its estate was still considered to be the patent proprietor and appellant in the present appeal proceedings. In the absence of any information or evidence relating to a succession, the board assumed that the appellant had ceased to exist as a commercial entity and was not in a position to act in the proceedings any more.
The OPs were nevertheless maintained. Neither the appellant not the respondent were represented.
How, and on which legal basis did the Board act in this situation?
 The appeal as filed on 17 December 2008 fulfilled the requirements of A 106 to A 108 […].
 The submissions made by [the patent proprietor’s] representative with the letter of 1 June 2012 […] indicated that the appellant had ceased to exist as a legal entity.
 According to decision T 353/95 , only an existing natural or legal person can be a party to opposition proceedings (A 99(1) EPC; Lunzer/Singer, The EPC, London 1995, 99.02) and this applies also at the appeal stage since A 107, first sentence, makes no different provision in this respect (R 100(1)).
 If the [patent proprietor] still retained the capacity to act in the present appeal proceedings, the onus was on the [patent proprietor] or its representative to respond to the communication of 20 June 2012 by informing the board accordingly.
 Likewise, if there had been a transfer in the ownership of the patent in suit, the EPO should have been informed to this effect (cf. R 22 which is applicable during opposition proceedings according to R 85).
 In the absence of any response from the appellant’s representative to its communication of 20 June 2012, the board concludes that the original appellant has lost its capacity to act in proceedings before the EPO. As no transfer has been registered under R 22, the EPO has no record of a valid successor in title who would be entitled to continue the present proceedings.
 Consequently the appeal has lapsed and the proceedings are at an end.
For these reasons it is decided that:
The appeal proceedings are terminated.
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