T 0728/18 (Neratinib/WYETH) 02-09-2021
TREATMENT REGIMEN UTILIZING NERATINIB FOR BREAST CANCER
I. The decision under appeal is the opposition division's decision rejecting the opposition filed against European patent No. 2 416 774.
II. The opponent (appellant) filed an appeal requesting that the decision be set aside and the patent be revoked.
III. In its reply to the statement of grounds of appeal, the patent proprietor (respondent) requested that the appeal be dismissed, implying that the patent be maintained as granted (main request).
In subsequent letters, the respondent filed claim sets as auxiliary requests.
IV. The board summoned the parties to oral proceedings and gave its preliminary opinion in a communication pursuant to Article 15(1) RPBA 2020.
V. With the parties' agreement, oral proceedings were held as a videoconference on 2 September 2021. During the oral proceedings, the respondent withdrew all its auxiliary requests and its consent to the text in which the patent had been granted.
VI. At the end of the oral proceedings the board's decision was announced.
1. Under Article 113(2) EPC, the European Patent Office shall decide upon the European patent only in the text submitted to it, or agreed, by its proprietor.
2. By disapproving the granted text of the patent and withdrawing all pending requests, the respondent has withdrawn its approval of any text for maintenance of the patent. Hence, there is no approved text of the patent on the basis of which the board can decide on the appeal.
3. In these circumstances, it is established case law that the patent must be revoked without further substantive examination as to patentability (see decision T 73/84, OJ EPO 1985, 241 and Case Law of the Boards of Appeal of the European Patent Office, 9th edition 2019, section IV.D.2). The board has no reason to deviate from this case law.
For these reasons it is decided that:
1. The decision under appeal is set aside.
2. The patent is revoked.