14-15 November 2018
|European Case Law Identifier:||ECLI:EP:BA:2017:T156117.20171127|
|Date of decision:||27 November 2017|
|Case number:||T 1561/17|
|IPC class:||C12N 9/04|
|Language of proceedings:||EN|
|Download and more information:||
|Title of application:||Vitamin K epoxide recycling polypeptide VKORC1, a therapeutic target of coumarin and their derivatives|
|Applicant name:||Baxalta Incorporated
|Opponent name:||Emergent BioSolutions Inc.
|Relevant legal provisions:||
|Keywords:||Basis for a decision on the appeal (no) - revocation of the patent|
Summary of Facts and Submissions
I. European patent No. 2 272 951 with the title "Vitamin K epoxide recycling polypeptide VKORC1, a therapeutic target of coumarin and their derivatives" was granted on the European patent application No. 10 011 278.8.
II. Two oppositions to the grant of the patent were filed. In an interlocutory decision under Articles 101(3)(a) and 106(2) EPC posted on 15 May 2017, an opposition division found that, account being taken of the amendments made by the patent proprietor during the opposition proceedings, the patent and the invention to which it relates met the requirements of the EPC.
III. The patent proprietors, who hereafter will be referred to in the singular, and opponent 02 filed appeals against the interlocutory decision.
IV. Opponent 2 (appellant) submitted a statement setting out the grounds of appeal and requested that the decision under appeal be set aside and the patent be revoked.
V. On 25 September 2017, the patent proprietor withdrew its appeal and became a respondent in this procedure.
VI. Opponent 01 (party as of right) did not make any submissions.
VII. By letter dated 17 October 2017, the patent proprietor informed the board that it no longer approved the text in which the patent was granted, and that it no longer approved the amended text of the patent according to any of the requests "filed during the present opposition/appeal proceedings".
Reasons for the Decision
1. Opponent 2 is the sole appellant against the interlocutory decision of the opposition division holding that the patent can be maintained in amended form. Thus, in appeal proceedings the respondent (patent proprietor) is primarily restricted to defending the patent in the amended form (G 9/92, OJ EPO 1994, 875).
2. According to Article 113(2) EPC, the European Patent Office may decide upon the European patent only in the text submitted to it, or agreed, by the proprietor of the patent.
3. Agreement cannot be held to be given if the patent proprietor expressly states that it no longer approves the text of the patent as amended by way of any of the claim requests on file (see section VII above).
4. 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 in these circumstances, the proceedings are to be terminated by a decision ordering revocation of the patent, without going into the substantive issues (see, inter alia, decisions T 73/84, OJ EPO 1985, 241; T 186/84, OJ EPO 1986, 79, followed by numerous decisions cited in Case Law of the Boards of Appeal of the EPO, 8th edition, 2016, IV.C.5.2, page 979).
For these reasons it is decided that:
1. The decision under appeal is set aside.
2. The patent is revoked.