T 1311/14 () of 26.1.2017

European Case Law Identifier: ECLI:EP:BA:2017:T131114.20170126
Date of decision: 26 January 2017
Case number: T 1311/14
Application number: 04812384.8
IPC class: A23K 1/16
A23K 1/18
Language of proceedings: EN
Distribution: D
Download and more information:
Decision text in EN (PDF, 231.319K)
Documentation of the appeal procedure can be found in the Register
Bibliographic information is available in: EN
Versions: Unpublished
Title of application: Composition for animal consumption and method for reducing MAP kinase activity
Applicant name: Virginia Tech Intellectual Properties, Inc.
Opponent name: Mars, Incorporated
Board: 3.3.09
Headnote: -
Relevant legal provisions:
European Patent Convention Art 108
European Patent Convention Art 101
European Patent Convention Art 111(1)
European Patent Convention Art 113(2)
European Patent Convention R 99(2)
European Patent Convention R 101(1)
Keywords: Appeal of patent proprietor inadmissible - missing statement of grounds
Basis of decision - text or agreement to text withdrawn by patent proprietor
Basis of decision - patent revoked
Catchwords:

-

Cited decisions:
T 2405/12
Citing decisions:
-

Summary of Facts and Submissions

I. This decision concerns the appeals filed by the patent proprietor and the opponent against the interlocutory decision of the opposition division that European patent No. 1 753 302 as amended met the requirements of the EPC.

II. By communication of 8 September 2014, received by the appellant on 15 September 2014, the Registry of the Board informed the appellant/patent proprietor that it appeared from the file that the written statement of grounds of appeal had not been filed, and that it was therefore to be expected that the appeal would be rejected as inadmissible pursuant to Article 108, third sentence, EPC in conjunction with Rule 101(1) EPC. The appellant was informed that any observations had to be filed within two months of notification of the communication.

No reply to this communication was received.

III. Since no written statement setting out the grounds of appeal has been filed within the time limit, and neither the notice of appeal nor any other document filed contained anything that could be regarded as a statement of grounds pursuant to Article 108 EPC and Rule 99(2) EPC, the board held in its communication dated 19 September 2016 that the patent proprietor's appeal was inadmissible. Consequently, the patent proprietor had the status of a respondent in relation to the admissible appeal of the opponent.

IV. In a letter dated 23 January 2017, the patent proprietor informed the board that:

"The patent proprietor, Virginia Tech Intellectual Properties, Inc. hereby withdraws all requests in the appeal proceedings, no longer approves the text upon which the patent was granted and will not be submitting an amended text."

Reasons for the Decision

1. Article 113(2) EPC requires that the European Patent Office shall decide upon the European patent only in the text submitted to and agreed on by the proprietor of the patent.

2. Agreement is not given if the proprietor expressly states that it no longer approves the text upon which the patent was granted and that it will not be submitting an amended text. Since the text of the patent is at the disposition of the patent proprietor, a patent cannot be maintained against the patent proprietor's will.

3. In the present situation, where there is no text of the patent on which basis the board can consider the appeal of the appellant/opponent, the only possibility available to the board is to terminate the proceedings and to revoke the patent as envisaged in Article 111(1) EPC together with Article 101 EPC. In this context reference is made to T 2405/12 and the decisions cited therein.

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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