T 2528/10 () of 22.9.2016

European Case Law Identifier: ECLI:EP:BA:2016:T252810.20160922
Date of decision: 22 September 2016
Case number: T 2528/10
Application number: 00951767.3
IPC class: B01D 9/00
B01F 5/02
A61K 9/00
Language of proceedings: EN
Distribution: D
Download and more information:
Decision text in EN (PDF, 223.576K)
Documentation of the appeal procedure can be found in the Register
Bibliographic information is available in: EN
Versions: Unpublished
Title of application: PROCESS FOR PRODUCING FINE MEDICINAL SUBSTANCES
Applicant name: Aventis Pharma Limited
Opponent name: Bayer Technology Services GmbH
Board: 3.3.02
Headnote: -
Relevant legal provisions:
European Patent Convention Art 113(2)
Keywords: Revocation of the patent at request of the patent proprietor
Catchwords:

-

Cited decisions:
T 0073/84
T 0186/84
Citing decisions:
-

Summary of Facts and Submissions

I. In its interlocutory decision posted on 10 November 2010, the opposition division decided that European patent No. 1 214 129 as amended met the requirements of the EPC.

II. The opponent (appellant) appealed against this decision and requested that the patent be revoked in its entirety.

III. The proprietor (respondent) originally requested that the appeal be dismissed, but by letter of 8 August 2016 stated the following:

"(...) we hereby withdraw the Patent Proprietor's (Respondent's) approval of the text on the basis of which the Opposition Division decided to maintain the above European patent.

The Patent Proprietor does not propose any alternative text. We understand that this will lead to the revocation of the European patent."

Reasons for the Decision

1. The appeal is admissible.

2. Article 113(2) EPC stipulates that the EPO may decide upon a European patent only in the text submitted to it, or agreed to by the proprietor of the patent.

3. This substantive requirement for maintaining a patent is not fulfilled if the proprietor - as in the present case - expressly states that it withdraws its approval of the text of the amended patent held allowable by the opposition division and that it does not propose any alternative text (see section III above).

4. There is thus no text of the patent on the basis of which the board can consider the appeal. In these circumstances, the appeal proceedings are to be terminated by a decision ordering the revocation of the patent, without going into the substantive issues (see e.g. decisions T 73/84, OJ EPO 1985, 241 and T 186/84, OJ EPO 1986, 79).

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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