T 0458/15 (Influenza vaccine formulations/GLAXOSMITHKLINE) 05-02-2019
Influenza vaccine formulations for intradermal delivery
Merck Sharp & Dohme Corporation (opposition withdrawn)
Sanofi Pasteur SA (opposition withdrawn)
I. This decision concerns the appeal filed by the (sole remaining) opponent (appellant) against the decision of the opposition division holding that European patent
No. 1 361 890 could be maintained in amended form.
II. The appellant requested that the decision under appeal be set aside and that the patent be revoked. Oral proceedings were requested on an auxiliary basis.
III. The patent proprietor (respondent) filed observations on the appeal and requested that the appeal be dismissed or, alternatively, that the patent be maintained on the basis of the sets of claims of one of eight auxiliary requests. Oral proceedings were requested on an auxiliary basis.
IV. By letter dated 7 January 2019 the respondent informed the board that:
"The Patentee no longer approves the text in any form, including the text in which the patent was maintained by the opposition division and any amended text submitted as an auxiliary request.
The patent may be revoked and oral proceedings are no longer required".
1. The appeal complies with Articles 106 to 108 and Rule 99 EPC and is therefore admissible.
Disapproval of the text of the patent by the patent proprietor
2. Pursuant to Article 113(2) EPC, the European Patent Office shall decide upon the European patent only in the text submitted to it, or agreed, by the proprietor of the patent.
3. Such an agreement cannot be deemed to exist if the patent proprietor - as in the present case - expressly states that it "no longer approves the text of the patent in any form" and that "[t]he patent may be revoked" (see section IV).
4. There is therefore no text of the patent on the basis of which the board can consider the appeal. In these circumstances, the proceedings are to be terminated by a decision ordering revocation of the patent, without examination as to patentability (see decision T 73/84, OJ EPO, 1985, 241 and Case Law of the Boards of Appeal of the EPO, 8th edition, 2016, IV.C.5.2, page 979).
5. The statement contained in the letter of the respondent that "oral proceedings are no longer required" (see section V) can only be interpreted as a withdrawal of its earlier request for oral proceedings. The present decision could thus be taken without holding oral proceedings because it is in line with appellant's main request (see section II).
For these reasons it is decided that:
1. The decision under appeal is set aside.
2. The patent is revoked.