| European Case Law Identifier: | ECLI:EP:BA:2025:T120823.20250117 | ||||||||
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| Date of decision: | 17 January 2025 | ||||||||
| Case number: | T 1208/23 | ||||||||
| Application number: | 16862791.7 | ||||||||
| IPC class: | A61K 39/395 A61K 31/4439 A61K 31/198 A61K 31/573 A61K 31/69 C07K 16/28 A61K 9/10 A61K 47/12 A61K 47/20 A61K 47/22 A61P 35/00 |
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| Language of proceedings: | EN | ||||||||
| Distribution: | D | ||||||||
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| Title of application: | SUBCUTANEOUS FORMULATIONS OF ANTI-CD38 ANTIBODIES AND THEIR USES | ||||||||
| Applicant name: | Janssen Biotech, Inc. | ||||||||
| Opponent name: | König Szynka Tilmann von Renesse Patent Boutique LLP Breuer, Markus |
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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| Keywords: | Termination of the appeal proceedings - text or agreement to text withdrawn by patent proprietor | ||||||||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 patent proprietor (appellant) filed an appeal against the decision of the opposition division to revoke European patent No 3 370 770.
II. The board appointed oral proceedings.
III. In a letter dated 30 December 2024, the appellant stated that it no longer approved the text of the patent as granted, that it withdrew all auxiliary requests on file, and that it would not be filing any replacement text.
IV. The oral proceedings, appointed for 6 May 2025, were cancelled.
Reasons for the Decision
1. According to the principle of party disposition established by Article 113(2) EPC the EPO shall examine and decide on the European patent only in the text submitted to it or agreed upon by the proprietor of the patent.
2. In view of the patent proprietor's statement in its letter dated 30 December 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).
3. In a situation such as the present one, where the patent proprietor has appealed a decision of the opposition division revoking its 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 decision under appeal 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.
