| European Case Law Identifier: | ECLI:EP:BA:2024:T047722.20240411 | ||||||||
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| Date of decision: | 11 April 2024 | ||||||||
| Case number: | T 0477/22 | ||||||||
| Application number: | 13717118.7 | ||||||||
| IPC class: | A61K 39/02 A61K 39/12 A61K 39/295 |
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| Language of proceedings: | EN | ||||||||
| Distribution: | D | ||||||||
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| Title of application: | PCV/MYCOPLASMA HYOPNEUMONIAE/PRRS COMBINATION VACCINE | ||||||||
| Applicant name: | Zoetis Services LLC | ||||||||
| Opponent name: | Boehringer Ingelheim Animal Health USA Inc. | ||||||||
| Board: | 3.3.04 | ||||||||
| Headnote: | - | ||||||||
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| Keywords: | Termination of the appeal proceedings - text or agreement to text withdrawn by patent proprietor | ||||||||
| Catchwords: |
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Summary of Facts and Submissions
I. The patent proprietor (appellant) filed an appeal against the decision of the opposition division to revoke European patent No 2 833 909.
II. The board appointed oral proceedings and, in a subsequent communication pursuant to Article 15(1) RPBA, provided its preliminary appreciation of some matters concerning the appeal.
III. In a letter dated 11 April 2024, the appellant stated that they no longer approved the text of the patent as granted, that they withdrew all auxiliary requests on file, and that they would not propose any other amended 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 patent proprietor's statement in their letter dated 11 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).
3. In a situation as the present, where the patent proprietor has appealed a decision of the opposition division revoking its patent and the appeal becomes devoid of subject-matter for substantive examination following the withdrawal of the patent proprietor's agreement to any text for the maintenance of the patent, the appeal proceedings are to be terminated, and the decision under appeal becomes final (see T 728/11, point 3).
Order
For these reasons it is decided that:
The appeal proceedings are terminated.
