T 1884/16 (Sorafenib in combination with other cytostatic or cytotoxic agents/BAYER) 23-11-2021
Aryl urea compounds in combination with other cytostatic or cytotoxic agents for treating human cancers
Basis of decision - text or agreement to text withdrawn by patent proprietor
Basis of decision - patent revoked
I. The opposition division rejected the opposition against European patent No. 1 769 795.
II. The opponent (appellant) lodged an appeal against this decision. It requested that the decision under appeal be set aside and the patent be revoked.
III. The patent proprietor (respondent) requested that the appeal be dismissed. Its main request was that the patent be maintained as granted. Alternatively, a patent was to be maintained in amended form on the basis of the sets of claims of any of auxiliary requests I to VII, all submitted with the reply to the statement setting out the grounds of appeal.
IV. With its letter of 18 November 2021 the respondent informed the board that it no longer approved the text of the granted patent, that all requests filed so far were withdrawn, that no amended text would be submitted, and that, therefore, revocation of the patent was expected.
1. The appeal is admissible.
2. The respondent withdrew its agreement to the text of the granted patent, withdrew any requests filed so far and confirmed that it did not intend to submit any other text for the maintenance of the patent.
Article 113(2) EPC stipulates that the EPO may decide upon a European patent only in the text submitted to it, or agreed to by the patent proprietor. However, this substantive requirement for maintaining the contested patent is not fulfilled in the present case. There is therefore no text of the patent on the basis of which the Board can consider the appeal of the appellant (see T 73/84, OJ EPO, 1985, 241, reasons point 2).
3. The patent is therefore to be revoked, without going into the substantive issues (see T 186/84, OJ EPO 1986, 79, reasons point 5).
For these reasons it is decided that:
1. The decision under appeal is set aside.
2. The patent is revoked.