T 0012/16 (Animal models/KYMAB) 15-09-2020
Animal Models and Therapeutic Molecules
Regeneron Pharmaceuticals, Inc.
Basis of decision - text or agreement to text withdrawn by patent proprietor
Basis of decision - patent revoked
I. In an interlocutory decision, the opposition division decided that European Patent No. 2 421 357 as amended in the form of auxiliary request 1 and the invention to which it related, met the requirements of the EPC.
II. All three opponents duly filed notice of appeal against this decision and paid the required appeal fee, with opponents 2 and 3 subsequently withdrawing their appeals. Thus opponent 1 is the sole appellant and the patent proprietor is the respondent to this appeal.
III. With the statement of grounds of appeal the appellant requested that the decision be set aside and the patent be revoked. Oral proceedings were requested on an auxiliary basis.
IV. Both parties were summoned to oral proceedings to take place on 29 September 2020.
V. Subsequently, the board issued a communication pursuant to Article 15(1) RPBA setting out its preliminary appreciation of some of aspects concerning the appeal.
VI. In a letter dated 24 July 2020 the respondent stated: "The Patentee hereby expressly disapproves of [sic] the text of the granted patent, and is not offering any alternative text.
We anticipate that this action will remove the need for the scheduled oral proceedings, and for completeness we will not attend the scheduled proceedings and withdraw our request for oral proceedings".
VII. The oral proceedings were subsequently cancelled.
1. The appeal complies with Articles 106 to 108 and Rule 99 EPC and is admissible.
2. Pursuant to Article 113(2) EPC the EPO shall examine, and decide upon the European patent application or the European patent only in the text submitted to it, or agreed, by the applicant or the proprietor of the patent.
3. Such an agreement cannot be deemed to exist if the patent proprietor expressly states that they no longer approve the text of the patent as granted and no alternative text is offered. This is the present situation.
4. There is therefore no text of the patent on the basis of which the board can consider compliance thereof with the requirements of the EPC. It is established case law of the boards of appeal of the EPO that in these circumstances the patent must be revoked without further substantive examination (see decision T 73/84, OJ EPO 1985, 241 and Case Law of the Boards of Appeal of the EPO, 9th edition 2019, III.B.3.3).
5. There are no remaining issues that have to be dealt with by the board in the present appeal case.
6. Revocation of the patent complies with the requests of both parties and the present decision can therefore be taken without holding oral proceedings.
For these reasons it is decided that:
1. The decision under appeal is set aside.
2. The patent is revoked.