In contrast to the case law cited above, T 708/01 concerns the situation where the patent proprietor had appealed against the decision of the opposition division to revoke the patent. The patent had expired in all the designated contracting states. The board decided that R. 60(1) EPC 1973 only applied, if at all, to the extent that the appellants were required to state whether they wished to maintain the appeal. The proprietors could also apply to have the patent maintained in amended form with effect only for the past. In the case in point the appellants stated that they wished to maintain the appeal. The board decided to continue the proceedings.

In T 520/10 the board noted that if a European patent has lapsed in all designated contracting states, opposition proceedings may be continued at the request of the opponent. However, if – as in the present case – the patent proprietor was the appellant, it would be inappropriate to allow one or more of the opponents (respondents) to decide whether the appeal proceedings should be continued. For this reason, R. 84(1) EPC had to be applied mutatis mutandis in such opposition appeal proceedings so that it was the patent proprietor who could request that the appeal proceedings be continued. As no such request had been made, the appeal proceedings were terminated. See also T 1733/09, T 1313/10, T 1272/10, T 1825/11.

In T 2536/10 the board interpreted a mere statement confirming that the patent had been allowed to lapse in all designated states in response to the board's communication asking the appellant (patent proprietor) whether it requested continuation of the appeal proceedings to mean that the appellant did not wish to request continuation. The appeal proceedings were terminated.