T 2197/08 (Delivery of tobramycin/NOVARTIS VACCINES) 14-01-2010
System for delivering a tobramycin formulation
I. By the decision announced orally at the end of the oral proceedings on 22 August 2008, and issued in writing on 19 September 2008, the opposition division rejected the opposition filed against the European patent No. 1 320 355.
II. The appellant (opponent) lodged an appeal against this decision on 18 November 2008, with simultaneous payment of the prescribed fee, and requested the revocation of the patent as well as reimbursement of the appeal fee. Oral proceedings were also requested. With a letter of 28 January 2009 the appellant filed written statements setting out the grounds of appeal.
III. In its letter dated 21 December 2009, the respondent (patentee) withdrew its requests and approval of the text of the patent as granted and declared that it was believed that, in these circumstances, the patent was to be revoked on formal grounds.
IV. In its communication dated 11 January 2010 and faxed to the parties on the same day, the board informed the parties that it intended to set aside the decision under appeal and to revoke the patent in view of the respondent's letter of 21 December 2009. The board further indicated that, with regard to the request for reimbursement of the appeal fee, it appeared that there was no procedural violation in the first instance proceedings justifying the reimbursement and that therefore the issue of the reimbursement of the appeal fee had to be discussed and the date for oral proceedings had to be maintained.
V. With a letter dated 11 January 2010 the respondent informed the board that it would not be attending the oral proceedings.
VI. On 14 January 2010, oral proceedings took place before the board in the absence of the respondent.
During the oral proceedings, the appellant withdrew its request for reimbursement of the appeal fee.
VII. The appellant (opponent) requested that the decision under appeal be set aside and that the European patent be revoked.
VIII. The respondent (patentee) withdrew in writing its requests and approval of the text of the European patent as granted.
1. The appeal is admissible.
2. Article 113(2) EPC 1973 states that the European Patent Office confines its considerations in proceedings to the text of the European patent application or the European patent "submitted to it, or agreed, by the applicant for or proprietor of the patent".
3. In the present case, as indicated in section III above, the appellant (patent proprietor) made it clear that it withdrew its requests and that it no longer approved the text of the patent as granted.
4. It thus follows that there is no longer a text on the basis of which the board of appeal could consider compliance with the requirements of the EPC. Therefore, the patent must be revoked without any further substantive examination (see e.g. T 73/84, OJ EPO 1985, 241).
For these reasons it is decided that:
1. The decision under appeal is set aside.
2. The patent is revoked.