| European Case Law Identifier: | ECLI:EP:BA:2022:T193618.20220128 | ||||||||
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| Date of decision: | 28 January 2022 | ||||||||
| Case number: | T 1936/18 | ||||||||
| Application number: | 11760068.4 | ||||||||
| IPC class: | C07H 17/08 A61K 31/7048 |
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| Language of proceedings: | EN | ||||||||
| Distribution: | D | ||||||||
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| Title of application: | CRYSTALLINE FORMS OF A MACROLIDE, AND USES THEREFOR | ||||||||
| Applicant name: | Cempra Pharmaceuticals, Inc. | ||||||||
| Opponent name: | LEK Pharmaceuticals d.d. | ||||||||
| Board: | 3.3.02 | ||||||||
| Headnote: | - | ||||||||
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| Keywords: | Basis of decision - text submitted or agreed by patent proprietor (no) | ||||||||
| Catchwords: |
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Summary of Facts and Submissions
I. The appeal by the opponent ("appellant") lies from the decision of the opposition division to reject the opposition against European patent No. 2 550 286 ("the patent").
II. In its statement of grounds of appeal, the appellant requested that the appealed decision be set aside and that the patent be revoked.
III. In its reply to the statement of grounds of appeal, the the patent proprietor requested that the patent be maintained as granted, meaning that the appeal be dismissed. Alternatively, it requested that the patent be maintained on the basis of the claims according to one of auxiliary requests 1 to 3 as filed with its reply to the statement of grounds of appeal.
IV. The board summoned the parties to oral proceedings to be held on 26 April 2022.
V. By letter dated 19 January 2022, the patent proprietor withdrew all requests on file, disapproved the text of the granted patent and offered no alternative text for the granted patent.
VI. By communication dated 26 January 2022, the board cancelled the oral proceedings.
Reasons for the Decision
1. Under Article 113(2) EPC, the European Patent Office shall examine, and decide upon, the European patent only in the text submitted to it, or agreed, by the proprietor of the patent.
2. Since the patent proprietor withdrew all requests on file, disapproved the text of the granted patent and offered no alternative text for the granted patent, there is no text of the patent submitted or agreed by the patent proprietor, on the basis of which the board can consider compliance with the requirements of the EPC.
3. It is established case law of the boards of appeal (see T 0073/84, OJ EPO 1985, page 241, T 0186/84, OJ EPO 1986, page 79, T 0798/90, T 0463/90, T 0014/99, T 1844/17, T 3007/18) that, under these circumstances, the patent is to be revoked without further substantive examination. There are also no ancillary issues that would have to be dealt with by the board in the present case.
Order
For these reasons it is decided that:
1. The appealed decision is set aside.
2. The patent is revoked.
