| European Case Law Identifier: | ECLI:EP:BA:2019:T150214.20190604 | ||||||||
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| Date of decision: | 04 June 2019 | ||||||||
| Case number: | T 1502/14 | ||||||||
| Application number: | 03784274.7 | ||||||||
| IPC class: | C07D 239/42 | ||||||||
| Language of proceedings: | EN | ||||||||
| Distribution: | D | ||||||||
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| Title of application: | PROCESS FOR PREPARING THE CALCIUM SALT OF ROSUVASTATIN | ||||||||
| Applicant name: | AstraZeneca UK Limited | ||||||||
| Opponent name: | Gillard, Richard Edward Teva Pharmaceutical Industries Ltd. |
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| Board: | 3.3.02 | ||||||||
| Headnote: | - | ||||||||
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| Keywords: | Basis of decision - text or agreement to text withdrawn by patent proprietor Basis of decision - patent revoked |
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| Catchwords: |
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Summary of Facts and Submissions
I. By way of its decision, the opposition division found that European Patent No. 1 539 711 met the requirements of the European Patent Convention.
II. The opponents (appellants) filed appeals against this decision requesting revocation of the patent.
III. During oral proceedings before the board held on 4 June 2019, the respondent disapproved of the text of the granted patent and of all claim requests on file, stated that no amended text would be submitted, and that it expected the patent to be revoked.
Reasons for the Decision
1. Under Article 113(2) EPC, the European Patent Office shall consider and decide upon the European patent only in the text submitted to it, or agreed, by the proprietor of the patent. This principle has to be observed also in opposition and opposition appeal proceedings.
2. The respondent, by withdrawing approval of the text of the granted patent, indicating that it would not be submitting an amended text and expecting the patent to be revoked, has thereby withdrawn its approval of any text for maintenance of the patent. Since the text of the patent is at the disposition of the patent proprietor, a patent cannot be maintained against the patent proprietor's will. There is therefore no text on the basis of which the Board can maintain the patent.
3. In view of the above, the Board concludes that the patent must be revoked as envisaged in Article 101 EPC and as expected by the respondent. This conclusion is also in line with established case law following decision T 73/84, OJ 1985, 241 (see e.g. T 655/11 of 11 November 2005; T 220/12 of 22 June 2015; T 381/12 of 3 January 2018; T 2680/17 of 2 April 2019).
Order
For these reasons it is decided that:
1. The decision under appeal is set aside.
2. The patent is revoked.
