| European Case Law Identifier: | ECLI:EP:BA:2023:T129421.20230803 | ||||||||
|---|---|---|---|---|---|---|---|---|---|
| Date of decision: | 03 August 2023 | ||||||||
| Case number: | T 1294/21 | ||||||||
| Application number: | 14790457.7 | ||||||||
| IPC class: | C12N 15/85 C12N 9/22 |
||||||||
| Language of proceedings: | EN | ||||||||
| Distribution: | D | ||||||||
| Download and more information: |
|
||||||||
| Title of application: | METHODS AND COMPOSITIONS FOR THE TARGETED MODIFICATION OF A GENOME | ||||||||
| Applicant name: | Regeneron Pharmaceuticals, Inc. | ||||||||
| Opponent name: | CMS Cameron McKenna Nabarro Olswang LLP | ||||||||
| Board: | 3.3.08 | ||||||||
| Headnote: | - | ||||||||
| Relevant legal provisions: |
|
||||||||
| Keywords: | Basis of decision - text or agreement to text withdrawn by patent proprietor Basis of decision - patent revoked |
||||||||
| Catchwords: |
- |
||||||||
| Cited decisions: |
|
||||||||
| Citing decisions: |
|
||||||||
Summary of Facts and Submissions
I. Appeals were filed by both the patent proprietor (Appellant I) and the opponent (Appellant II) against the decision of the opposition division to maintain the patent No. 3 080 279 in amended form according to auxiliary request 1.
II. At oral proceedings before the board, Appellant I initially requested as a main request that the decision under appeal be set aside and the patent be maintained upon the basis of auxiliary request 1A, or alternatively upon the basis of one of auxiliary requests 1, 2A, 3, 4A, 5A, 6, 7, 8A to 11A, 12, 13, 14A to 17A, and 18 to 37.
III. Appellant II requested that the decision under appeal be set aside and the patent be revoked in its entirety.
IV. During the oral proceedings, the patent proprietor withdrew all its requests on file and its approval to the text of the patent as granted. At the end of the oral proceedings, the Chair announced the board's decision.
Reasons for the Decision
1. Under 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 if the patent proprietor - as in the present case - expressly withdraws the consent to the text of the patent, and withdraws all claim requests on file.
3. There is therefore no text of the patent on the basis of which the board can consider the appeal. In these circumstances, the patent is to be revoked, 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, 10**(th) edition 2022, III.B.3.3 and IV.D.2).
4. Revocation of the patent is also the main request of the appellant II (section III. above).
Order
For these reasons it is decided that:
1. The decision under appeal is set aside.
2. The patent is revoked.
