T 2370/09 (Arachidonic acid/MARTEK) of 26.5.2014

European Case Law Identifier: ECLI:EP:BA:2014:T237009.20140526
Date of decision: 26 May 2014
Case number: T 2370/09
Application number: 05077139.3
IPC class: C12P 7/64
A23D 9/00
A23C 11/04
A61K 31/20
A23L 1/30
Language of proceedings: EN
Download and more information:
Decision text in EN (PDF, 210.998K)
Documentation of the appeal procedure can be found in the Register
Bibliographic information is available in: EN
Versions: Unpublished
Title of application: Arachidonic acid and methods for the production and use thereof
Applicant name: MARTEK BIOSCIENCES CORPORATION
Opponent name: Cargill, Inc.
Suntory Liquors Limited
N.V. Nutricia
Board: 3.3.02

Headnote

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Relevant legal provisions:
European Patent Convention Art 113(2)
Keywords: Basis of decision - text or agreement to text withdrawn by patent proprietor
Basis of decision - patent revoked
Catchwords:

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Cited decisions:
T 0073/84
Citing decisions:
-

Summary of Facts and Submissions

I. The European patent 1 642 983 was maintained in amended form by the decision of the opposition division pronounced at the oral proceedings held on 11 June 2009.

II. Appeals were filed against this decision by the patent proprietor and by opponents 01 and 02. Opponent 03 had withdrawn its opposition on 4 July 2008 and is therefore not a party to the appeal proceedings.

III. The patent proprietor requested to set aside the decision under appeal and to maintain the patent as granted or on the basis of any of the auxiliary requests filed with the statement of grounds of appeal. The opponents requested that the decision under appeal be set aside and the patent be revoked. All appellants requested oral proceedings.

IV. With letter of 14 May 2014 the patent proprietor withdrew all of its previous requests, and stated that it did no longer approve the text in which the patent was granted and would not be filing a new text to replace the disapproved text.

Reasons for the Decision

1. The appeals are admissible.

2. As the patent proprietor withdrew all of its requests and no longer approves the text in which the patent was granted, it may be inferred that it wishes to prevent any text whatever of the patent from being maintained (see T 73/84, OJ EPO 1985, 241). If there is no text on the basis of which the board can consider the appeals, the patent must be revoked without any further substantive examination.

3. As revocation of the patent complies with the requests of the appellants/opponents, there is no need to hold oral proceedings and the decision can be issued in writing.

Order

For these reasons it is decided that:

1. The decision under appeal is set aside.

2. The patent is revoked.

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