| European Case Law Identifier: | ECLI:EP:BA:2025:T006823.20250505 | ||||||||
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| Date of decision: | 05 May 2025 | ||||||||
| Case number: | T 0068/23 | ||||||||
| Application number: | 10714058.4 | ||||||||
| IPC class: | C12N 15/11 A61K 47/42 C07K 14/705 C07K 7/06 C07K 14/005 C07K 14/435 C12N 15/113 A61K 47/69 A61K 48/00 |
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| Language of proceedings: | EN | ||||||||
| Distribution: | D | ||||||||
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| Title of application: | Composition for delivery of genetic material | ||||||||
| Applicant name: | Oxford University Innovation Limited | ||||||||
| Opponent name: | Truscott, Glyn, John Strawman Limited |
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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| Keywords: | Basis of decision - text or agreement to text withdrawn by patent proprietor Basis of decision - patent revoked |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 of the patent proprietor (appellant I), opponent 1 (appellant II) and opponent 2 (appellant III) are against the opposition division's interlocutory decision concerning the maintenance of European patent No. 2 419 144 (the patent) in amended form based on auxiliary request 21.
II. The opponents requested, inter alia, that the decision under appeal be set aside and the patent be revoked.
III. The board issued a summons to oral proceedings and a communication pursuant to Article 15(1) RPBA.
IV. Opponents 1 and 2 both indicated in writing that they would not attend the oral proceedings scheduled for 19 and 20 May 2025.
V. In a submission dated 29 April 2025, the patent proprietor stated the following:
"The Patentee hereby withdraws their approval under Rule 71 EPC of the text in which the patent was granted. For the avoidance of doubt, the Patentee also withdraws all requests pending in the appeal proceedings.
In the absence of an agreed text, pursuant to Article 113(2) EPC, we look forward to confirmation of termination of the proceedings by a decision ordering the revocation of the patent."
VI. The board then cancelled the oral proceedings.
Reasons for the Decision
1. Pursuant to the principle of party disposition as codified in Article 113(2) EPC, the EPO will examine, and decide upon, a European patent only in the text submitted to it or agreed by the patent proprietor. Accordingly, a patent cannot be maintained against the patent proprietor's will.
2. There is no such agreement if the patent proprietor, as in the present case, expressly withdraws the consent to the text of the patent in the form as granted, and at the same time unequivocally withdraws all requests on file (see section V. above).
3. Since in the present case the patent proprietor withdrew their approval of the text of the patent as granted and declared that all pending auxiliary requests were at the same time withdrawn, there is no text of the patent in the proceedings which the board can consider for compliance with the requirements of the EPC and on the basis of which the patent could be maintained. In these circumstances, the patent is to be revoked without assessing issues relating to patentability (see e.g. decisions T 73/84 (OJ EPO 1985, 241), T 186/84, (OJ EPO 1986, 79), T 1995/21, Reasons 3, 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).
4. Revocation of the patent also complies with the request of the opponents (see section II. above). The present decision can therefore be taken without holding oral proceedings (Article 116(1) EPC).
Order
For these reasons it is decided that:
1. The decision under appeal is set aside.
2. The patent is revoked.
