T 1595/13 06-03-2018
PROLYL HYDROXYLASE INHIBITORS AND METHODS OF USE
Basis of decision - text or agreement to text withdrawn by patent proprietor
Basis of decision - patent revoked
I. The appeal lies from the decision of the opposition division to maintain European patent No. 2 044 005 in the form of the auxiliary request 3 before it. Both the opponent and the patent proprietor appealed this decision.
II. With a letter dated 27 February 2018, the patent proprietor withdrew its appeal and requested reimbursement of the appeal fee according to Rule 103(2)(a) EPC. It withdrew any other request then pending, confirmed that no further requests would be filed, informed the board that it would not be attending the already scheduled oral proceedings before it, and withdrew its approval under Rule 71 EPC of the text in which the patent was maintained in amended form, and of the text in which the patent was granted. It argued that, in such situations, the opposition appeal proceedings were to be terminated by a decision ordering revocation of the patent, without going into any substantive issues.
III. The appellant (opponent) requested that the decision under appeal be set aside and the patent revoked.
1. The appeal of the opponent is admissible.
2. During these appeal proceedings, the patent proprietor withdrew its approval of the text of the patent as granted and as maintained by the opposition division.
Under Article 113(2) EPC the European Patent Office must consider a European patent only in the text submitted to it, or agreed, by the proprietor of the patent. There is, however, no text of the patent on the basis of which the board can consider the appeal.
3. Since the text of the patent is at the disposition of the patent proprietor, a patent cannot be maintained against the proprietor's will.
If a patent proprietor withdraws his approval of the text of the patent as granted and of the text in which the patent was maintained, withdraws every other request on file, and requests revocation of the patent in suit, it wishes to prevent any text whatever of the patent from being maintained.
4. In the case of T 73/84 (OJ EPO 1985, 241 see especially Headnote and Reasons) the board decided that, if the proprietor of a European patent stated in opposition or appeal proceedings that it no longer approved the text in which the patent was granted, and did not submit any amended text, the patent was to be revoked. This approach was confirmed inter alia by decisions T 186/84 (OJ EPO 1986, 79), T 655/01 (not published in OJ EPO), T 1526/06 (not published in OJ EPO) and T 2405/12 (not published in OJ EPO).
5. In the circumstances of the present case, the board sees no reasons to deviate from the principles set out in the above-mentioned decisions. The patent must therefore be revoked without going into any substantive issue.
6. Since the patent proprietor withdrew its appeal more than four weeks before the date set for oral proceedings, its appeal fee shall be reimbursed at 50%.
For these reasons it is decided that:
1. The decision under appeal is set aside.
2. The patent is revoked.
3. The appeal fee of the patent proprietor shall be refunded at 50%.