| European Case Law Identifier: | ECLI:EP:BA:2023:T195119.20230801 | ||||||||
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| Date of decision: | 01 August 2023 | ||||||||
| Case number: | T 1951/19 | ||||||||
| Application number: | 13733496.7 | ||||||||
| IPC class: | C12N 5/00 | ||||||||
| Language of proceedings: | EN | ||||||||
| Distribution: | D | ||||||||
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| Title of application: | Methods for inactivation of viruses and bacteria in cell culture media | ||||||||
| Applicant name: | F. Hoffmann-La Roche AG | ||||||||
| Opponent name: | Bayer Intellectual Property GmbH / Bayer Aktiengesellschaft Blodig, Wolfgang |
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| Board: | 3.3.08 | ||||||||
| Headnote: | - | ||||||||
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| Keywords: | Basis of decision - text or agreement to text withdrawn by patent proprietor | ||||||||
| Catchwords: |
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Summary of Facts and Submissions
I. The patent proprietor (appellant) filed an appeal against the opposition division's decision revoking European patent EP 2 864 471 ("the patent").
II. With its statement setting out the grounds of appeal, the appellant requested, inter alia, that the decision under appeal be set aside and that the patent be maintained in amended form on the basis of the set of claims of the main request, or alternatively of one of the auxiliary requests (auxiliary requests 1 to 3, 3a, 3b, 4, 4a, 4b, 5, 5a and 5b) filed with the statement of grounds of appeal.
III. With their replies to the statement of grounds of appeal, opponent 1 and opponent 2 (respondents) requested, as understood by the board, that the appeal be dismissed. With a later letter, opponent 2 withdrew the opposition and ceased to be a party in the appeal proceedings.
IV. Oral proceedings before the board were held as scheduled. At the oral proceedings the appellant declared that it no longer approved the text of the patent as granted, and that it withdrew all auxiliary requests.
Reasons for the Decision
1. Pursuant to the principle of party disposition established by 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.
2. Such an agreement cannot be deemed to exist where - as in the present case - the patent proprietor expressly stated that it no longer approved the text of the patent as granted, and withdrew all claim requests on file.
3. According to the case law of the boards of appeal, in these circumstances the proceedings are to be terminated by a decision ordering revocation of the patent under Article 101 EPC without assessing issues relating to patentability (see decision T 73/84, OJ EPO 1985, 241, and Case Law of the Boards of Appeal of the European Patent Office, 10th edition 2022, III.B.3.3). In the case at hand, where the patent had already been revoked by the opposition division it cannot be revoked again (see also decision T 454/15, Reasons 6). As there are no remaining issues that need to be dealt with by the board in the present appeal case, the consequence of the appellant's declaration is that the appeal has to be dismissed.
Order
For these reasons it is decided that:
The appeal is dismissed.
