| European Case Law Identifier: | ECLI:EP:BA:2023:T199421.20230911 | ||||||||
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| Date of decision: | 11 September 2023 | ||||||||
| Case number: | T 1994/21 | ||||||||
| Application number: | 12769787.8 | ||||||||
| IPC class: | A61K 39/39 A61K 9/127 A61K 9/00 |
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| Language of proceedings: | EN | ||||||||
| Distribution: | D | ||||||||
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| Title of application: | PEGYLATED LIPOSOMES FOR DELIVERY OF IMMUNOGEN-ENCODING RNA | ||||||||
| Applicant name: | GlaxoSmithKline Biologicals SA | ||||||||
| Opponent name: | Müller, Christian Strawman Limited |
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| Board: | 3.3.07 | ||||||||
| Headnote: | - | ||||||||
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| Keywords: | Basis of decision - text or agreement to text withdrawn by patent proprietor Basis of decision - patent revoked |
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| Catchwords: |
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Summary of Facts and Submissions
I. An opposition was filed against European patent 2 750 707 (hereinafter "the patent").
II. The opposition division took the interlocutory decision that, on the basis of auxiliary request 2 filed during the oral proceedings on 8 July 2021, the patent met the requirements of the EPC.
III. Both opponents 1 and 2 lodged an appeal against the above decision of the opposition division.
IV. By letter dated 10 January 2022, opponent 2 withdrew its appeal.
V. With the statement of the grounds of appeal, opponent 1 (appellant) requested that the decision under appeal be set aside and that the patent be revoked.
VI. With the reply to the appeal, the patent proprietor (respondent) requested that the appeal be dismissed and filed two auxiliary requests.
VII. The Board issued a summons to oral proceedings.
VIII. By letter dated 15 August 2023, the respondent withdrew their approval of the text in which the European Patent was granted as well as the main and all auxiliary requests. They further stated that they would not be filing a replacement text or any further requests. They concluded that the proceedings were to be terminated by a decision ordering the revocation of the patent without reference to any of the substantive issues.
IX. The Board subsequently cancelled the oral proceedings.
Reasons for the Decision
1. Pursuant to Article 113(2) EPC, the EPO shall decide upon the European patent only in the text submitted to it, or agreed, by the patent proprietor.
2. By expressly stating that they no longer approve the text of the patent, withdraw all pending requests and will not be submitting an amended text, the respondent withdrew their approval of any text for maintenance of the patent.
3. Therefore, there is no approved text of the patent on the basis of which the Board can consider the appeal.
4. Under these circumstances, as expressly indicated by the respondent, it is established case law that the patent is to be revoked without substantive examination as to patentability (Case Law of the Boards of Appeal of the European Patent Office, 10**(th) edition, 2022, IV.D.2).
Order
For these reasons it is decided that:
1. The decision under appeal is set aside.
2. The patent is revoked.
