| European Case Law Identifier: | ECLI:EP:BA:2025:T168123.20250912 | ||||||||
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| Date of decision: | 12 September 2025 | ||||||||
| Case number: | T 1681/23 | ||||||||
| Application number: | 06738028.7 | ||||||||
| IPC class: | C07K 1/18 B01D 15/30 B01D 15/32 B01D 15/36 B01D 15/38 C07K 16/06 C07K 1/16 C07K 1/20 C07K 1/22 |
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| Language of proceedings: | EN | ||||||||
| Distribution: | D | ||||||||
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| Title of application: | A method of weak partitioning chromatography | ||||||||
| Applicant name: | Wyeth LLC | ||||||||
| Opponent name: | Boult Wade Tennant LLP Novo Nordisk A/S Icosa Margaret Dixon Limited |
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| Board: | 3.3.04 | ||||||||
| Headnote: | - | ||||||||
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| Keywords: | Basis of decision - text or agreement to text withdrawn by patent proprietor | ||||||||
| Catchwords: |
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Summary of Facts and Submissions
I. The patent proprietor (appellant I) and opponents 1 to 4 (appellants II to V) filed appeals against the interlocutory decision of the opposition division that European Patent No. 1 869 065 in amended form based on auxiliary request 18 fulfilled the requirements of the EPC.
II. The patent proprietor (appellant I) requested that the decision under appeal be set aside and the patent be maintained based on the claims of the main request, or, alternatively, based on one of the sets of claims of auxiliary requests 1 to 50.
III. Opponents 1 to 4 (appellants II to V) requested that the decision under appeal be set aside and the patent be revoked.
IV. The board appointed oral proceedings as requested by the parties and, in a communication pursuant to Article 15(1) RPBA, provided its preliminary appreciation of some matters concerning the appeal case.
V. With a letter dated 12 September 2025 the patent proprietor (appellant I) withdrew its agreement to the text of the patent as granted according to Article 113(2) EPC and withdrew all requests pending in the present appeal proceedings.
VI. The board then cancelled the oral proceedings.
Reasons for the Decision
1. Pursuant to 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 declares that it withdraws the consent to the text of the patent in the form as granted and withdraws all claim requests on file (see section V. above).
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 also decision T 73/84, OJ EPO 1985, 241 and Case Law of the Boards of Appeal of the European Patent Office, 11th edition 2025, IV.D.2).
4. There is also no ancillary matter remaining that needs to be dealt with by the board in the present appeal case. The decision can therefore be issued without holding oral proceedings.
Order
For these reasons it is decided that:
1. The decision under appeal is set aside.
2. The patent is revoked.
