T 0197/14 () of 5.4.2017

European Case Law Identifier: ECLI:EP:BA:2017:T019714.20170405
Date of decision: 05 April 2017
Case number: T 0197/14
Application number: 04771825.9
IPC class: A61K 8/18
A61P 17/14
A61K 31/22
A61K 31/357
C07D 317/30
C07D 319/06
Language of proceedings: EN
Distribution: D
Download and more information:
Decision text in EN (PDF, 222.629K)
Documentation of the appeal procedure can be found in the Register
Bibliographic information is available in: EN
Versions: Unpublished
Title of application: COMPOSITION AND METHOD FOR PROMOTING HAIR GROWTH
Applicant name: R-Tech Ueno, Ltd.
Opponent name: ALLERGAN, INC.
Board: 3.3.07
Headnote: -
Relevant legal provisions:
European Patent Convention Art 113(2)
Keywords: Basis of decision - revocation of the patent at request of the patent proprietor
Catchwords:

-

Cited decisions:
T 0073/84
T 1851/09
Citing decisions:
-

Summary of Facts and Submissions

I. European Patent 1 673 058 was opposed on the grounds that its subject-matter lacked inventive step and it extended beyond the content of the application as filed. By an interlocutory decision posted on 29 November 2013, the opposition division maintained the patent in amended form.

II. The opponent (appellant) lodged an appeal against that decision and filed the statement setting out the grounds of appeal on 9 April 2014. The patent proprietor (respondent) replied to the appeal with letter of 31 July 2014. Both parties made a request for oral proceedings.

III. By letter of 31 March 2017, the respondent requested the revocation of the opposed patent and withdrew its request for oral proceedings.

Reasons for the Decision

1. The respondent's request for revocation of the patent indicates that it withdraws its agreement to the text of the patent as granted as well as to the text in which the patent was maintained in amended form according to the decision under appeal and that it does not intend to submit any other text for the maintenance of the patent.

2. Article 113(2) EPC, however, stipulates that the EPO may decide upon a European patent only in the text submitted to it, or agreed by the patentee. This substantive requirement for maintaining the contested patent is not fulfilled in the present case and therefore the proceedings are to be terminated by a decision ordering revocation, without going into the substantive issues (see e.g. decisions T 73/84, OJ EPO 1985, 241 and T 1851/09 of 9 October 2012 not published in OJ EPO).

Order

For these reasons it is decided that:

1. The decision is set aside.

2. The patent is revoked.

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