| European Case Law Identifier: | ECLI:EP:BA:2025:T110623.20250929 | ||||||||
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| Date of decision: | 29 September 2025 | ||||||||
| Case number: | T 1106/23 | ||||||||
| Application number: | 18155113.6 | ||||||||
| IPC class: | A61K 39/00 A61K 9/08 A61K 9/19 A61K 47/18 A61K 47/26 A61K 39/395 |
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| Language of proceedings: | EN | ||||||||
| Distribution: | D | ||||||||
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| Title of application: | Stabilized antibody-containing liquid formulations | ||||||||
| Applicant name: | Chugai Seiyaku Kabushiki Kaisha | ||||||||
| Opponent name: | James Poole Limited Strawman Limited Wohlfahrt, Jan Dr. H. Ulrich Dörries Elkington and Fife LLP |
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| Board: | 3.3.04 | ||||||||
| Headnote: | - | ||||||||
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| Keywords: | Termination of the appeal proceedings - text or agreement to text withdrawn by patent proprietor | ||||||||
| Catchwords: |
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Summary of Facts and Submissions
I. The appeal of the patent proprietor (appellant) lies from the decision of the opposition division to revoke European patent number 3 378 486.
1. The patent is based on European patent application No. 18 155 113.6, which is a divisional application of European patent application No. 11 734 694.0.
II. The board summoned the parties to oral proceedings as requested and informed them of its preliminary opinion in a communication pursuant to Article 15(1) RPBA.
III. Oral proceedings before the board took place on 29 September 2025.
During the oral proceedings, the appellant
- withdrew its consent and agreement under Article 113(2) EPC to the text of the patent as granted, and
- also withdrew all its pending requests.
At the end of the oral proceedings, the Chairwoman announced the board's decision.
Reasons for the Decision
2. According to the principle of party disposition established by Article 113(2) EPC, the EPO shall examine and decide upon a European patent only in the text submitted to it, or agreed upon, by the proprietor of the patent.
3. As the appellant withdrew its approval of any text for the maintenance of the patent under appeal, there is no approved text on the basis of which the board could consider the appeal and examine whether a ground for opposition under Article 100 EPC prejudices the maintenance of the patent. It is also no longer possible to take a 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; T 2434/18, point 4 of the Reasons).
4. In a situation such as the present one, where the patent proprietor has appealed a decision of the opposition division revoking the patent, and where the appeal becomes devoid of subject-matter for substantive examination following the withdrawal of the appellant's agreement to any text for the maintenance of the patent, the appeal proceedings are to be terminated, and the decision under appeal becomes final (T 728/11, point 3 of the Reasons; T 477/22, point 3 of the Reasons).
Order
For these reasons it is decided that:
The appeal proceedings are terminated.
