| European Case Law Identifier: | ECLI:EP:BA:2024:T128222.20240826 | ||||||||
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| Date of decision: | 26 August 2024 | ||||||||
| Case number: | T 1282/22 | ||||||||
| Application number: | 14716752.2 | ||||||||
| IPC class: | A61K 39/00 A61K 39/39 A61K 39/395 C07K 16/28 A61P 35/00 |
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| Language of proceedings: | EN | ||||||||
| Distribution: | D | ||||||||
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| Title of application: | Combination of vaccination and OX40 agonists | ||||||||
| Applicant name: | CureVac SE | ||||||||
| Opponent name: | BioNTech SE | ||||||||
| 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| Keywords: | Basis of decision - text or agreement to text withdrawn by patent proprietor Basis of decision - patent revoked |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 opponent (appellant) filed an appeal against the interlocutory decision of the opposition division that European patent No 3 116 535, as amended in the form of the main request, met the requirements of the EPC. The patent proprietor is respondent to this appeal.
II. The board appointed oral proceedings.
III. In a letter dated 14 August 2024, the respondent withdrew consent to the text of the patent as granted according to Article 113(2) EPC. Additionally, the respondent declared that it would not file a replacement text and withdrew all pending requests.
IV. The oral proceedings, appointed for 9 October 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. It follows that the patent cannot be maintained against the will of the respondent (patent proprietor) as expressed in its statement in the letter dated 14 August 2024 (point III. above).
3. In the case in hand, the patent proprietor withdrew its approval of the text of the patent as granted. By withdrawing all requests, it also unequivocally withdrew its approval of the text of the patent as amended according to any of the auxiliary requests. There is therefore no longer any text of the patent in the proceedings which the board can consider for compliance with the requirements of the EPC, so that it is no longer possible to take a decision as to substance (see e.g. decisions T 186/84, OJ 1986, 79, Reasons 5; T 646/08, Reasons 4 and T 2434/18, Reasons 4).
4. It is established case law that in the present circumstances the decision under appeal must be set aside and the patent be revoked without further substantive examination as 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, sections III.B.3.3 and IV.D.2).
5. Revocation of the patent complies with the request of the appellant. The present decision can therefore be taken without holding oral proceedings (Article 116(1) EPC and Article 12(8) RPBA 2020).
Order
For these reasons it is decided that:
1. The decision under appeal is set aside.
2. The patent is revoked.
