| European Case Law Identifier: | ECLI:EP:BA:2024:T075522.20240919 | ||||||||
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| Date of decision: | 19 September 2024 | ||||||||
| Case number: | T 0755/22 | ||||||||
| Application number: | 13834427.0 | ||||||||
| IPC class: | C12Q 1/68 | ||||||||
| Language of proceedings: | EN | ||||||||
| Distribution: | D | ||||||||
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| Title of application: | Methods to detect rare mutations and copy number variation | ||||||||
| Applicant name: | Guardant Health, Inc. | ||||||||
| Opponent name: | STRAWMAN LIMITED Grünecker Patent- und Rechtsanwälte PartG mbB |
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| Board: | 3.3.08 | ||||||||
| 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| Keywords: | Basis of decision - text or agreement to text withdrawn by patent proprietor Basis of decision - patent revoked |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. The appeals lodged by opponent 2 (appellant I) and opponent 3 (appellant II) lie from the opposition division's interlocutory decision that European patent No. 2 893 040 (the patent) in the version of the main request and the invention to which it relates meet the requirements of the EPC.
II. Both appellants requested that the decision under appeal be set aside and that the patent be revoked.
III. With the reply to the appeals, the patent proprietor (respondent) filed sets of claims of a main request and auxiliary requests.
IV. The parties were summoned to oral proceedings and the board expressed its preliminary opinion on some matters concerning the appeals in a communication under Article 15(1) RPBA.
V. During the oral proceedings, the patent proprietor withdrew their consent to the text of the patent as granted, withdrew all the requests on file, and announced that they would not file further requests.
Reasons for the Decision
1. Pursuant to Article 113(2) EPC, the EPO examines, and decides upon, the European patent only in the text submitted to it, or agreed by the patent proprietor.
2. Such an agreement cannot be considered to exist if, as in the present case, the patent proprietor expressly withdraws consent to the granted text of the patent and withdraws all (auxiliary) requests on file (see section V.).
3. In such circumstances, there is no text of the patent on the basis of which the board can consider the appeals. Without an approved text, the patent must be revoked without assessing issues relating to patentability (see e.g. decisions T 73/84, OJ EPO 1985, 241 and T 186/84, OJ EPO 1986, 79; see also Case Law of the Boards of Appeal of the European Patent Office, 10th edition 2022, sections III.B.3.3 and IV.D.2).
Order
For these reasons it is decided that:
1. The decision under appeal is set aside.
2. The patent is revoked.
