T 0186/10 (Use of pleuromutilin derivatives/NOVARTIS) 08-01-2013
USE OF PLEUROMUTILIN DERIVATIVES FOR TRANSDERMAL TREATMENT OF BACTERIAL DISEASES
Novartis Pharma GmbH
I. The Opponent (Appellant) lodged an appeal against the decision of the Opposition Division rejecting the opposition filed against European patent No. 1 231 915.
II. Summons to oral proceedings were despatched on 26 June 2012.
III. With a letter filed on 17 August 2012 the Proprietors of the patent-in-suit (Respondents) informed the Board that they did not approve the text of the patent as granted and did not propose any other text.
IV. The oral proceedings appointed for 21 September 2012 were cancelled on 5 September 2012.
V. The Appellant requested that the decision under appeal be set aside and that the patent be revoked.
1. The appeal is admissible.
2. In accordance with Article 113(2) EPC, the EPO can maintain a patent only on the basis of a text agreed by the proprietor of the patent.
The Respondents indicated that they did not agree to the text of the patent as granted and did not propose any other text for the maintenance of the patent-in-suit. Consequently, the Board has no basis on which to make a decision on patentability as would be required by Article 113(2) EPC.
3. Under such circumstances where a fundamental requirement for maintaining the patent is lacking, the proceedings are to be terminated by a decision ordering revocation, without going into the substantive issues (see inter alia decision 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.