| European Case Law Identifier: | ECLI:EP:BA:2024:T113421.20240625 | ||||||||
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| Date of decision: | 25 June 2024 | ||||||||
| Case number: | T 1134/21 | ||||||||
| Application number: | 11736812.6 | ||||||||
| IPC class: | C07K 16/30 A61K 39/395 A61P 35/00 C12N 15/02 C12Q 1/02 C12Q 1/68 G01N 33/50 G01N 33/574 G01N 33/68 |
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| Language of proceedings: | EN | ||||||||
| Distribution: | D | ||||||||
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| Title of application: | Anti-DLL3 antibody | ||||||||
| Applicant name: | Chugai Seiyaku Kabushiki Kaisha The University of Tokyo |
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| Opponent name: | Boehringer Ingelheim RCV GmbH & Co KG / Boehringer Ingelheim International GmbH Schiweck Weinzierl Koch Patentanwälte Partnerschaft mbB AbbVie Inc. |
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| Board: | 3.3.04 | ||||||||
| Headnote: | - | ||||||||
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| Keywords: | Basis of decision - text or agreement to text withdrawn by patent proprietor | ||||||||
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Summary of Facts and Submissions
I. The patent proprietors (appellants) filed an appeal against the decision by the opposition division to revoke European patent No 2 530 091.
II. The board appointed oral proceedings.
III. In a letter dated 27 May 2024, the appellants withdrew all requests on file, withdrew their consent and agreement under Article 113(2) EPC to the text of the patent as granted, and indicated that they would not be filing a replacement text.
Reasons for the Decision
1. According to the principle of party disposition established by Article 113(2) EPC, the EPO shall examine and decide on the European patent only in the text submitted to it or agreed upon by the proprietor of the patent.
2. In view of the appellants' (patent proprietors) statement in their letter dated 27 April 2024 (point III. above), there is no approved text on the basis of which the board could consider the appeal and examine whether a ground for opposition prejudices the maintenance of the patent. It is also no longer possible to take a decision as to substance because the absence of an approved text precludes any substantive examination of the alleged impediments to patentability (T 186/84, OJ 1986, 79, point 5 of the Reasons; T 646/08, point 4 of the Reasons and T 2434/18, point 4 of the Reasons. See also Case Law of the Boards of Appeal of the European Patent Office, 10th edition 2022, III.B.3.3 and IV.D.2).
3. In a situation such as the present one, where the patent proprietors have appealed a decision of the opposition division revoking their patent and where the appeal becomes devoid of subject-matter for substantive examination following the withdrawal of the patent proprietors' agreement to any text for the maintenance of the patent, the appeal proceedings are to be terminated, and the decision under appeal becomes final. Therefore a dismissal of the appeal is in line with this effect (see T 454/15, Reasons 6, T 2684/18, Reasons 4 and T 820/21, Reasons 3) and with the respondents' request.
Order
For these reasons it is decided that:
The appeal is dismissed.
