| European Case Law Identifier: | ECLI:EP:BA:2023:T083622.20230517 | ||||||||
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| Date of decision: | 17 May 2023 | ||||||||
| Case number: | T 0836/22 | ||||||||
| Application number: | 16162568.6 | ||||||||
| IPC class: | C40B 50/06 C12N 5/078 C12Q 1/68 |
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| Language of proceedings: | EN | ||||||||
| Distribution: | D | ||||||||
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| Title of application: | Adaptive immunity profiling and methods for generation of monoclonal antibodies | ||||||||
| Applicant name: | Adaptive Biotechnologies Corporation | ||||||||
| Opponent name: | Ablynx N.V. | ||||||||
| 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| Keywords: | Basis of decision - text or agreement to text withdrawn by patent proprietor Basis of decision - patent revoked |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 appeal lodged by the opponent (appellant) lies from the opposition division's decision to reject the opposition against European patent No. EP 3 059 337.
II. With the statement of grounds of appeal the appellant requested, inter alia, that the decision under appeal be set aside and the patent be revoked.
III. With the reply to the statement of grounds of appeal the patent proprietor (respondent) filed sets of claims of auxiliary requests 1 to 15 and requested inter alia that the appeal be dismissed, i.e. that the patent be maintained as granted or, alternatively, that the patent be maintained in amended form based on the set of claims of one of auxiliary requests 1 to 15.
IV. The board summoned the parties to oral proceedings in accordance with their requests and, in a communication pursuant to Article 15(1) RPBA, expressed its preliminary opinion on some matters concerning the appeal.
V. Both parties were represented at the oral proceedings. During the oral proceedings, the patent proprietor withdrew its approval to the text of the patent. At the end of the oral proceedings, the Chair announced the board's decision.
Reasons for the Decision
1. Under the principle of party disposition established by Article 113(2) EPC, the EPO shall examine, and decide upon, the European patent only in the text submitted to it, or agreed, by the proprietor of the patent.
2. Such an agreement cannot be deemed to exist if the patent proprietor - as in the present case - expressly withdraws the consent to the text of the patent.
3. There is therefore no text of the patent on the basis of which the board can consider the appeal. In these circumstances, the patent is to be revoked, without assessing issues relating to patentability (see decision T 73/84, OJ EPO 1985, 241 and Case Law of the Boards of Appeal of the European Patent Office, 10th edition 2022, IV.D.2).
4. Revocation of the patent is also the main request of the appellant (see section II.).
Order
For these reasons it is decided that:
1. The decision under appeal is set aside.
2. The patent is revoked.
