| European Case Law Identifier: | ECLI:EP:BA:2019:T022516.20190828 | ||||||||
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| Date of decision: | 28 August 2019 | ||||||||
| Case number: | T 0225/16 | ||||||||
| Application number: | 02758573.6 | ||||||||
| IPC class: | A61K 38/26 A61P 3/04 |
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| Language of proceedings: | EN | ||||||||
| Distribution: | D | ||||||||
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| Title of application: | Oxyntomodulin for preventing or treating excess weight | ||||||||
| Applicant name: | Imperial Innovations Limited | ||||||||
| Opponent name: | Eli Lilly and Company | ||||||||
| Board: | 3.3.04 | ||||||||
| Headnote: | - | ||||||||
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| Keywords: | Basis of decision - agreement to text withdrawn by patent proprietor | ||||||||
| Catchwords: |
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Summary of Facts and Submissions
I. The opponent (appellant) filed an appeal against the decision of the opposition division to reject the opposition filed against European patent No. 1 427 437.
II. With the statement of grounds of appeal the appellant requested that the decision be set aside and the patent be revoked. Oral proceedings were requested on an auxiliary basis.
III. The proprietor (respondent) did not submit a reply to the statement of grounds of appeal.
IV. The board appointed oral proceedings to take place on 24 May 2019 and subsequently issued a communication pursuant to Article 15(1) RPBA, setting out its preliminary opinion.
V. By letter dated 26 April 2019 the appellant maintained its requests as stated in the statement of grounds of appeal.
VI. In a letter dated 30 April 2019 the respondent stated that it withdrew the previous approval of the text proposed for grant and of the patent as granted. It further stated that no alternative text was being offered and that it was understood that this would result in the patent being revoked.
VII. The oral proceedings were subsequently cancelled.
Reasons for the Decision
1. Pursuant to Article 113(2) EPC the EPO shall examine, and decide upon, the European patent application or the European patent only in the text submitted to it, or agreed, by the applicant or the proprietor of the patent.
2. Such an agreement cannot be deemed to exist if the proprietor - as in the present case - expressly states that it no longer approves the text of the patent as granted and no alternative text is offered.
3. There is therefore no text of the patent on the basis of which the board can consider compliance thereof with the requirements of the EPC. It is established case law of the boards of appeal of the EPO that in these circumstances the patent must be revoked without further substantive examination (see Case Law of the Boards of Appeal of the EPO, 8th Edition, 2016, IV.C.5.2).
4. There are no remaining issues that have to be dealt with by the board in the present appeal case.
5. The decision can be taken without holding oral proceedings since the appellant's request to revoke the patent is allowed.
Order
For these reasons it is decided that:
1. The decision under appeal is set aside.
2. The patent is revoked.
