| European Case Law Identifier: | ECLI:EP:BA:2021:T222617.20210629 | ||||||||
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| Date of decision: | 29 June 2021 | ||||||||
| Case number: | T 2226/17 | ||||||||
| Application number: | 10178947.7 | ||||||||
| IPC class: | A61M 15/00 | ||||||||
| Language of proceedings: | EN | ||||||||
| Distribution: | D | ||||||||
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| Title of application: | Medicament dispenser | ||||||||
| Applicant name: | Glaxo Group Limited | ||||||||
| Opponent name: | Teva UK Limited | ||||||||
| Board: | 3.2.02 | ||||||||
| 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| Keywords: | Basis of decision - text or agreement to text withdrawn by patent proprietor Basis of decision - patent revoked |
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Summary of Facts and Submissions
I. This decision concerns the appeal filed by the opponent against the decision of the opposition division rejecting the opposition against European patent No. 2 266 650.
II. The appellant requested that the decision under appeal be set aside and that the patent be revoked in its entirety.
III. By letter dated 28 June 2021 the respondent (patent proprietor) declared:
"The Proprietor hereby withdraws its approval of the text in which the European Patent was granted. The Proprietor also withdraws all auxiliary requests and will not be filing a replacement text or any further requests."
IV. Oral proceedings took place on 29 June 2021.
Nobody was present for the parties. The appellant had declared in their submission dated 24 June 2021 that they would not attend the oral proceedings. The proceedings were continued without the parties (Rule 115(2) EPC and Article 15(3) RPBA 2020).
Reasons for the Decision
1. Pursuant to Article 113(2) EPC the EPO shall examine, and decide upon, the European patent only in the text submitted to it, or agreed, by the proprietor of the patent.
Such an agreement cannot be deemed to exist if the patent proprietor - as in the present case - expressly states that they no longer approve the text of the patent as granted, withdraw all submitted auxiliary requests, and declare that they will not be submitting an amended text or further requests.
Where there is no text of the patent on which basis the Board can consider the case of the patent proprietor, the only possibility available to the Board is to revoke the patent as envisaged by Article 101 EPC. In this context reference is made to T 73/84 (OJ EPO 1985, 241) as well as to T 2405/12 and T 55/16 (see also Case Law of the Boards of Appeal, 9th Edition 2019, III.B.3.3).
Order
For these reasons it is decided that:
1. The decision under appeal is set aside.
2. The patent is revoked.
