T 0725/06 (Immunoassay/BAYER) 26-01-2007
Immunoassay for determination of PSA-ACT
I. European patent No. 0 895 085 with the title "Immunoassay for determination of PSA-ACT" was granted with twelve claims on the basis of European patent application No. 98 113 378.8.
II. Two oppositions were filed under Article 100 (a) to (c) EPC. One of the opponents later withdrew its opposition.
III. In its decision dated 14 March 2006 pursuant to Article 102(3) EPC, the opposition division maintained the patent in amended form on the basis of the set of claims 1 to 12 received on 1 October 2004.
IV. On 12 May 2006, the appellant (opponent) lodged an appeal against this interlocutory decision. The appeal fee was paid on 23 May 2006 and a statement of grounds of appeal was submitted on 11 July 2006.
V. With its fax letter dated 1 December 2006 (received on 16 January 2007), the respondent (patentee) informed the board that it no longer agreed to the claims as granted by the opposition division.
VI. The appellant requested that the decision under appeal be set aside and that the European patent be revoked. Oral proceedings were also requested in case the board was not minded to revoke the patent.
1. The appeal is admissible.
2. The respondent informed the board that it no longer agreed to the claims on the basis of which the patent was maintained by the opposition division and did not submit any further claim request. Consequently, the board has no basis on which to make a decision on patentability as would be required by Article 113(2) EPC.
3. In accordance with Article 21 EPC, the boards of appeal shall be responsible for the examination of appeals from, in particular, decisions of the oppositions divisions. Here, the decision of the opposition division was appealed by the opponent who requests the revocation of the patent as maintained by the opposition division. This appeal is admissible. A decision must, thus, be taken.
4. According to the established case law of the boards of appeal (cf. eg. T 73/84, OJ EPO 1985, 241), if the proprietor of a European patent states in opposition or appeal proceedings that he no longer approves the text in which the patent was granted and does not submit an amended text, the patent is to be revoked. In the board's judgment, this finding applies in the present case. The patent is, thus, revoked.
5. Summoning oral proceedings is not necessary as the decision is in line with the appellant's request.
For these reasons, it is decided that:
1. The decision under appeal is set aside.
2. The patent is revoked.