| European Case Law Identifier: | ECLI:EP:BA:2024:T078622.20240626 | ||||||||
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| Date of decision: | 26 June 2024 | ||||||||
| Case number: | T 0786/22 | ||||||||
| Application number: | 16166757.1 | ||||||||
| IPC class: | A61K 38/19 A61K 31/7105 C07K 14/52 A61K 38/20 A61K 39/00 C12N 15/113 C12N 15/117 A61P 35/00 |
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| Language of proceedings: | EN | ||||||||
| Distribution: | D | ||||||||
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| Title of application: | RNA Containing Composition for Treatment of Tumor Diseases | ||||||||
| Applicant name: | CureVac SE | ||||||||
| Opponent name: | eTheRNA Immunotherapies NV Friedrich, Rainer BioNTech RNA Pharmaceuticals GmbH König Szynka Tilmann von Renesse SANOFI |
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| Board: | 3.3.04 | ||||||||
| 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| Keywords: | Basis of decision - text or agreement to text withdrawn by patent proprietor Basis of decision - patent revoked |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 patent proprietor (appellant) filed an appeal against the decision by the opposition division to revoke European patent No 3 173 092.
II. The board appointed oral proceedings.
III. In a letter dated 25 June 2024, the appellant withdrew consent to the text of the patent as granted according to Article 113(2) EPC, declared that it would not file a replacement text and withdrew all pending all requests.
IV. The oral proceedings, appointed for 9 September 2024, were cancelled.
Reasons for the Decision
1. Under Article 113(2) EPC, the European Patent Office shall examine and decide upon the European patent application or the European patent only in the text submitted to it, or agreed by the applicant or the proprietor of the patent.
2. In view of the appellant's (patent proprietor's) statement in their letter dated 25 June 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. See also Case Law of the Boards of Appeal of the European Patent Office, 10th edition 2022, III.B.3.3 and IV.D.2).
3. In a situation such as the present one, where the patent proprietor appealed against a decision of the opposition division revoking their patent and where 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 opposition division's decision to revoke the patent becomes final (see T 728/11, point 3; T 477/22, point 3).
Order
For these reasons it is decided that:
The appeal proceedings are terminated
