| European Case Law Identifier: | ECLI:EP:BA:2024:T136121.20240307 | ||||||||
|---|---|---|---|---|---|---|---|---|---|
| Date of decision: | 07 March 2024 | ||||||||
| Case number: | T 1361/21 | ||||||||
| Application number: | 17206749.8 | ||||||||
| IPC class: | C12N 15/113 | ||||||||
| Language of proceedings: | EN | ||||||||
| Distribution: | D | ||||||||
| Download and more information: |
|
||||||||
| Title of application: | Selective reduction of allelic variants | ||||||||
| Applicant name: | Ionis Pharmaceuticals, Inc. | ||||||||
| Opponent name: | Hoffmann Eitle | ||||||||
| 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| Keywords: | Basis of decision - text or agreement to text withdrawn by patent proprietor Basis of decision - patent revoked |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. The opponent (appellant) appealed the interlocutory decision of the Opposition Division of 17 June 2021 to maintain, in amended form, European patent EP 3 321 361 ("Selective reduction of allelic variants").
II. The appellant requested, inter alia, that this decision be set aside and amended such that the patent be revoked.
The patent proprietor (respondent) in their reply requested, inter alia, that the appeal be dismissed (main request), or that the patent be maintained on the basis of auxiliary requests 1 to 68.
III. Oral proceedings were appointed for 3 and 4 June 2024.
IV. On 28 February 2024, the respondent filed a submission as follows:
"The patentee withdraws its approval of the text of EP3321361 under Rule 71 EPC. The patentee withdraws all outstanding requests, including its request for oral proceedings. For the avoidance of doubt, the patentee will not be attending the oral proceedings scheduled for 3rd June 2024 and 4th June 2024."
V. In view thereof, oral proceedings were cancelled.
Reasons for the Decision
1. Art. 113(2) EPC requires that the European Patent Office decides upon the European patent only in the text submitted, or agreed, by the patent proprietor.
2. In the present case, the patent proprietor as respondent has explicitly disapproved the text of the patent without filing any other amended text on which further patent prosecution could be based, and has explicitly withdrawn the request for oral proceedings.
3. According to the established jurisprudence of the Boards of Appeal, in these circumstances the proceedings are to be terminated by a decision ordering revocation of the patent, without going into substantive issues (Case Law of the Boards of Appeal, 10th edition 2022, IV.D.2; T 73/84, OJ EPO 1985, 241; T 1995/21, T 774/20, T 1182/17, T 1310/19, T 1226/18).
4. Revocation of the patent is also the main request of the appellant.
5. There are also no other issues that need to be decided upon by the board in the present appeal case. The present decision can therefore be taken without holding oral proceedings (Art. 116(1) EPC).
Order
For these reasons it is decided that:
1. The decision under appeal is set aside.
2. The patent is revoked.
