T 1425/18 (DNA isolation method/EPIGENOMICS) 19-10-2021
Method for providing DNA fragments derived from an archived sample
Basis of decision - text or agreement to text withdrawn by patent proprietor
Basis of decision - patent revoked
I. An appeal was lodged by the opponent against the interlocutory decision of an opposition division that European patent no. 2 458 015 in amended form and the invention to which it related met the requirements of the EPC.
II. The board issued a summons to oral proceedings to be held on 17 November 2021, followed by a communication pursuant to Article 17(1) RPBA 2020.
III. By letter dated 18 October 2021, the patent proprietor withdrew its approval of the text in which the patent had been granted and withdrew all pending requests.
IV. The board subsequently cancelled the oral proceedings.
1. Article 113(2) EPC requires that the EPO may decide upon a European patent only in the text submitted to it, or agreed, by the proprietor of the patent.
2. As the patent proprietor withdrew its approval of any text for the maintenance of the patent in suit, there is no valid text on the basis of which the board can consider the appeal.
3. In the circumstances described above, it is established case law that the appeal proceedings must be terminated by a decision ordering the revocation of the patent without going into the substantive issues (see, for instance, T 0073/84, OJ EPO 1985, 241). There are also no ancillary issues that would have to be dealt with by the board in the present appeal case.
For these reasons it is decided that:
1. The decision under appeal is set aside.
2. The patent is revoked.