| European Case Law Identifier: | ECLI:EP:BA:2019:T157113.20190502 | ||||||||
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| Date of decision: | 02 May 2019 | ||||||||
| Case number: | T 1571/13 | ||||||||
| Application number: | 08005732.6 | ||||||||
| IPC class: | C12N 15/62 C07K 14/715 C12P 21/02 |
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| Language of proceedings: | EN | ||||||||
| Distribution: | D | ||||||||
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| Title of application: | Production of TNFR-Fc | ||||||||
| Applicant name: | Pfizer Ireland Pharmaceuticals | ||||||||
| Opponent name: | Duckett, Anthony Joseph Steinecke, Peter |
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| Board: | 3.3.08 | ||||||||
| Headnote: | - | ||||||||
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| Keywords: | No text agreed by patent proprietor - revocation of the patent | ||||||||
| Catchwords: |
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Summary of Facts and Submissions
I. European patent no. 1 992 697, based on European patent application no. 08 005 732.6 (a divisional application of European patent application no. 05 791 482.2, published as International patent application WO 2006/026447), was opposed on the grounds of Articles 100(a), (b) and (c) EPC. The opposition division considered the main request to contravene Article 76(1) EPC and the patent was maintained in amended form on the basis of an auxiliary request 1.
II. Appeals against the interlocutory decision of the opposition division were filed by the patent proprietor (appellant I) and opponents O1 and O2 (appellants II and III, respectively). All parties requested oral proceedings as an auxiliary measure.
With the statement setting out the grounds of appeal, appellant I filed a main request and auxiliary requests 1 to 18. Appellant I requested that the decision under appeal be set aside and the patent maintained on the basis of any of these requests.
With the statement setting out their grounds of appeal, appellants II and III filed new documentary evidence and requested that the decision under appeal be set aside and the patent revoked. Appellant II further requested the reimbursement of the appeal fee because of substantial procedure violations allegedly committed by the opposition division.
III. The board summoned the parties to oral proceedings. In a communication pursuant to Article 15(1) of the Rules of Procedure of the Boards of Appeal (RPBA), the parties were informed of the board's provisional, non-binding opinion on some of the issues of the case.
IV. Under cover of a letter dated 16 April 2019, appellant I withdrew its approval of the text in which the patent was granted and further in which the patent was maintained by the opposition division. Appellant I further indicated that it would not file any replacement text and that all pending requests were withdrawn, including the request for oral proceedings.
V. The board cancelled the scheduled oral proceedings.
VI. Upon invitation of the board to clarify whether it maintained its requests, appellant III, under cover of a letter dated 30 April 2019, withdrew its request for reimbursement of the appeal fee and its auxiliary request for oral proceedings.
Reasons for the Decision
1. Article 113(2) EPC requires that the EPO shall decide upon the European patent only in the text submitted to it, or agreed by the proprietor of the patent.
Agreement cannot be held to be given if the patent proprietor without submitting an amended text, expressly states that he no longer approves the text of the patent as granted or previously amended.
Thus, a substantive requirement for maintaining the patent is lacking and the proceedings are to be terminated by a decision ordering revocation, without going into the substantive issues (see "Case Law of the Boards of Appeal of the European Patent Office", 8th edition 2016, IV.C.5.2, 979, and decisions cited therein).
Order
For these reasons it is decided that:
1. The decision under appeal is set aside.
2. The patent is revoked.
