T 1580/08 (Antigenic conjugates/UNIVERSITY OF IOWA) 27-03-2012
Antigenic conjugates of conserved lipooligosaccharides of gram negative bacteria
GlaxoSmithKline Biologicals s.a.
Sanofi Pasteur SA
I. Appeals were lodged by the proprietor (hereinafter appellant I) and opponent 01 (hereinafter appellant II) against the interlocutory decision of the opposition division on the amended form in which the patent No. 0 941 738 can be maintained.
II. The board issued a summons to oral proceedings dated 13 December 2011 accompanied by a communication pursuant to Article 15(1) Rules of Procedure of the Boards of Appeal (RPBA).
III. Appellant I informed the board by a letter of 29 February 2012 as follows:
"we herewith indicate in accordance with Legal Advice No. 11/82 (OJ 1982, 57) that the Proprietor no longer approves the text of the European Patent 0 941 738 as granted. We also indicate that the Proprietor does not intend to submit or wish to pursue any otherwise amended text.
We understand that the oral hearing scheduled for April 18, 2012 will now be cancelled and that the European Patent 0 941 738 will now be revoked without further ado in accordance with the above Legal Advice."
IV. Appellant II requested that the decision under appeal be set aside and that the patent be revoked. It also requested oral proceedings if the board was minded to maintain the patent in any form.
V. The parties were informed by a communication of 7 March 2012 that the oral proceedings had been cancelled.
1. Pursuant to Article 113(2) EPC the EPO shall examine, and decide upon, the European patent only in the text submitted to it, or agreed, by the proprietor of the patent.
2. Such an agreement does not exist if the proprietor - as in the present case - expressly states that it no longer approves the text as granted and does not intend to submit or wishes to pursue any amended text. From these statements it may be inferred that the proprietor wishes to prevent any text whatever of the patent from being maintained.
3. 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 patent must be revoked without further substantive examination (decision T 73/84 OJ EPO 1985, 241 and Case Law of the Boards of Appeal of the EPO, 6th edition 2010, VII.C.6.1.2).
4. The statement contained in the letter of appellant I (see section III) can only be interpreted as a withdrawal of its earlier request for oral proceedings. The summons to oral proceedings could therefore be cancelled because the decision is in line with appellant's II main request.
For these reasons it is decided that:
1. The decision under appeal is set aside.
2. The patent is revoked.