14-15 November 2018
|European Case Law Identifier:||ECLI:EP:BA:2014:T067611.20140324|
|Date of decision:||24 March 2014|
|Case number:||T 0676/11|
|IPC class:||C07D 403/12|
|Language of proceedings:||EN|
|Download and more information:||
|Title of application:||Improved process for producing moxonidine|
|Applicant name:||CHEMAGIS LTD.|
|Opponent name:||Midas Pharma GmbH|
|Relevant legal provisions:||
|Keywords:||No text agreed by the patentee - revocation of patent|
Summary of Facts and Submissions
I. The patent proprietor (appellant patentee) and the opponent (appellant opponent) each lodged an appeal against the interlocutory decision of the opposition division maintaining European patent No. 1 873 151 in amended form, on the basis of auxiliary request 1 filed at oral proceedings before the opposition division.
II. Summons to oral proceedings were issued by the board on 20 December 2013.
III. With letter dated 28 February 2014, the appellant patentee stated the following:
"... further to the summons to attend oral proceedings on May 22**(nd), 2014 issued by the Board, please note that the Patentee no longer approves the text on the basis of which the European patent EP 1 873 151 was granted and withdraws all its requests.
In line with the Guidelines D-VI-2.2 and D-VIII-1.2.5, it is thus requested that the patent be revoked."
IV. The appellant opponent requested in writing that the decision under appeal be set aside and that the patent be revoked. It also requested oral proceedings in the event that the board did not accede to this request.
V. The parties were informed by a communication of 13 March 2014 that the oral proceedings had been cancelled.
Reasons for the Decision
1. The appeals are admissible.
2. Article 113(2) EPC stipulates that the European Patent Office shall decide upon the European patent only in the text submitted to it, or agreed by the proprietor of the patent.
In the present case, as indicated in above point III, the appellant patentee expressly stated that it no longer approved the text of the patent as granted, withdrew all its previous requests, and requested revocation of the patent.
There is therefore no text of the patent on the basis of which the board can consider the appeal. It is established case law that, under these circumstances, the patent must be revoked without further substantive examination (see Case Law of the Boards of Appeal of the EPO, 7th edition 2013, IV.C.5.2).
For these reasons it is decided that:
1. The decision under appeal is set aside.
2. The patent is revoked.