| European Case Law Identifier: | ECLI:EP:BA:2023:T102620.20231205 | ||||||||
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| Date of decision: | 05 December 2023 | ||||||||
| Case number: | T 1026/20 | ||||||||
| Application number: | 12884208.5 | ||||||||
| IPC class: | G21G 1/00 A61K 51/00 A61M 36/00 A61K 51/12 |
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| Language of proceedings: | EN | ||||||||
| Distribution: | D | ||||||||
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| Title of application: | RUBIDIUM ELUTION SYSTEM CONTROL | ||||||||
| Applicant name: | Jubilant Draximage, Inc. Ottawa Heart Institute Research Corporation |
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| Opponent name: | Uexküll & Stolberg Partnerschaft von Patent- und Rechtsanwälten |
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| Board: | 3.4.01 | ||||||||
| Headnote: | - | ||||||||
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| Keywords: | Basis of decision - text or agreement to text withdrawn by patent proprietor Basis of decision - patent revoked Decision in written procedure - (yes) - withdrawal of request for oral proceedings Reimbursement of appeal fee at 25% Reimbursement of appeal fee - (yes) |
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Summary of Facts and Submissions
I. The opponent appealed the Opposition Division's decision, that the patent amended on the basis of the auxiliary request 1 met the requirements of the EPC, and requested that the patent be revoked.
II. The proprietor (respondent) requested that the appeal be dismissed, or that the patent be maintained in amended form on the basis of one of six auxiliary requests, filed in reply to the appeal.
III. Both parties also conditionally requested oral proceedings.
IV. Summonses to oral proceedings before the Board were issued. They were accompanied by a communication expressing the Board's preliminary, non-binding view (Articles 15(1) and 17(2) RPBA 2020).
V. Within one month of notification of the summons, the proprietor withdrew their approval to the text in which the Patent was granted and withdrew all outstanding requests. They furthermore indicated they would not be filing a replacement text or any further requests.
VI. The oral proceedings were cancelled.
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.
2. Since the text of the patent is at the disposition of the proprietor, a patent cannot be maintained against the proprietor's will. This principle has to be strictly observed and applies, in particular, in opposition proceedings and opposition appeal proceedings.
3. As the patent proprietor withdrew their approval of the text of the patent and indicated that they would not be filling any replacement text, there is no text on the basis of which the Board can consider the opponent's appeal.
4. These proceedings must, then, be terminated with a decision ordering revocation of the patent without substantive examination as to patentability (cf. Case Law of the Boards of Appeal 10th edition, IV.D.2., third paragraph).
5. By withdrawing all outstanding requests, the proprietor also withdrew their request for oral proceedings.
6. Additionally, in view of the conclusion under point 4, above, the condition for the opponent's request for oral proceedings does not apply.
7. Consequently, the oral proceedings were cancelled and this decision is issued on the basis of the written proceedings.
8. Since the proprietor's withdrawal of the request for oral proceedings was made within one month of notification of the communication issued by the Board in preparation for the oral proceedings, both conditions of Rule 103(4)(c) EPC, that any request for oral proceedings is withdrawn ... and no oral proceedings take place, are met. It makes no difference that the withdrawing party and the appealing party are not the same (cf. T517/17, reason 6; T488/18, reason 8). Hence, 25% of the appeal fee is to be reimbursed.
Order
For these reasons it is decided that:
1. The decision is set aside.
2. The patent is revoked.
3. The appeal fee is reimbursed at 25%.
