T 1511/18 (Antigen-binding molecule/CHUGAI) 27-10-2022
Antigen-binding molecule capable of binding to two or more antigen molecules repeatedly
James Poole Limited
Glaxo Group Limited
Alexion Pharmaceuticals, Inc.
Basis of decision - text or agreement to text withdrawn by patent proprietor
Basis of decision - patent revoked
I. The appeals by opponents 1, 2, 4 and 5 (appellants I, II, III and IV) lie from the decision of the opposition division to reject the oppositions against European patent No. EP 2 275 443.
II. The patent proprietor (respondent) replied to the appeals, re-filed auxiliary requests 1 and 4 to 14 which were identical to the respective auxiliary requests filed during opposition and filed corrected auxiliary requests 2 and 3.
III. Appellant II (opponent 2) withdrew its request for oral proceedings and stated that it would not be represented at oral proceedings.
IV. Opponent 3 withdrew its opposition and is no longer party to the appeal proceedings as regards the substantive issues (T 789/89, OJ 1994, 482).
V. Appellant IV (opponent 5) withdrew its opposition and is no longer party to the appeal proceedings as regards the substantive issues.
VI. The board appointed oral proceedings and, in a communication pursuant to Article 15(1) RPBA, provided its preliminary appreciation of some matters concerning the appeal.
VII. Appellants I, II and III request that the decision under appeal be set aside and the patent be revoked.
VIII. During oral proceedings on 27 October 2022, the patent proprietor declared that it no longer approved the text in which the patent was granted, and that it withdrew all other requests.
1. The appeals of appellants I, II and III (opponents 1, 2 and 4) comply with Articles 106 to 108 and Rule 99 EPC and are admissible.
2. Pursuant to Article 113(2) EPC the EPO shall examine, and decide upon, the European patent only in the text submitted to it, or agreed, by the proprietor of the patent.
3. Such an agreement is deemed not to exist if the patent proprietor - as in the present case - expressly declares that it no longer approves the text in which the patent was granted, and that it no longer approves the amended text of the patent contained in any of the requests filed during the opposition/appeal proceedings (see section VIII.).
4. There is therefore no text of the patent on the basis of which the board can decide. In these circumstances, the patent is to be revoked, without assessing issues relating to patentability (see decision T 1467/16 and earlier decisions T 73/84, T 186/84, T 237/86, T 459/88, T 655/01, T 1526/06 and T 1960/12 cited therein). The board has no reason to deviate from this approach of the boards of appeal.
For these reasons it is decided that:
1. The decision under appeal is set aside.
2. The patent is revoked.