T 0128/19 (Phagocytosis/LELAND STANFORD JUNIOR UNIVERSITY) 11-03-2021
Methods for manipulating phagocytosis mediated by CD47
The Board of Trustees of the Leland Stanford
O1: Tioma Therapeutics, Inc
O2: Blink Biomedical
O3: Bristol-Myers Squibb Company
O4: Avidity IP Limited
O5: Wilding, James Roger
O6: Surface Oncology, Inc.
O7: Strawman Limited
Basis of decision - text or agreement to text withdrawn by patent proprietor
Basis of decision - patent revoked
I. The patent proprietor and opponents 1, 4, 5 and 6 lodged an appeal against the interlocutory decision of the opposition division, posted on 15 November 2018 and finding that European patent No. 2 242 512 as amended according to auxiliary request 4 met the requirements of the EPC. While the patent proprietor, opponents 1 to 5 and opponent 7 had received the decision within ten days following its dispatch, opponent 6 had acknowledged receipt with a date of 3 January 2019.
II. With their statement setting out the grounds of appeal, the patent proprietor requested that the decision under appeal be set aside and that the patent be maintained on the basis of the set of claims of the main request or, alternatively, on the basis of the set of claims of one of the auxiliary requests 1 to 5, all filed with their statement setting out the grounds of appeal.
III. The appealing opponents (see section I) all requested that the decision under appeal be set aside and the patent be revoked in its entirety.
IV. In a communication of the Registry dated 21 February 2019, the board noted that the notice of appeal on behalf of opponent 6 had been received on 14 January 2019 and raised concern as to whether the appeal fee was duly paid.
V. On 25 February 2019, opponent 6 paid the appeal fee.
VI. In their reply to the appeals of the opponents, the patent proprietor requested that the appeal of opponent 6 be held inadmissible, for failure to pay the appeal fee in due time.
VII. With a letter dated 6 January 2021, the patent proprietor informed the board as follows:
"The Proprietor hereby withdraws its approval under Rule 71 EPC of the text in which European Patent No. 2242512 was granted. The Proprietor will not be filing a replacement text. For the avoidance of doubt, the Proprietor also withdraws all requests pending in the appeal proceedings.
In the absence of a text agreed by the Proprietor, the opposition proceedings relating to this patent are terminated following Article 113(2) EPC, and the patent must be revoked....".
1. The appeals of all parties comply with the requirements of Articles 106 to 108 EPC and the further provisions referred to in Rule 101 EPC and are admissible.
2. In relation to opponent 6's appeal, the only issue at stake was whether the appeal fee was duly paid. Whether or not the appeal fee had already been validly paid on 14 January 2019 is irrelevant in the circumstances of the present case. At least for the reason that opponent 6's appeal fee was duly paid on 25 February 2019, which is within two months of notification of the decision under appeal to opponent 6, i.e. calculated from 3 January 2019 in accordance with Rule 126(2), Rule 131(1) and (4) EPC, the board concludes that also opponent 6's appeal is admissible.
3. Pursuant to Article 113(2) EPC the European Patent Office 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.
4. Since the text of the patent is at the disposition of the patent proprietor, their patent cannot be maintained against their will. In the present case the patent proprietor withdrew its approval of the text of the patent as granted. By withdrawing their auxiliary requests, they also unequivocally withdrew their approval of the text of the patent as amended according to any of these requests. There is therefore no longer any text of the patent in the proceedings which the board can consider for compliance with the requirements of the EPC.
5. It is established case law that in the present circumstances 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).
6. The board has no reason to deviate from this consistent approach of the boards of appeal, with the consequence that the patent is to be revoked. Revocation of the patent complies with the requests of all appealing parties.
7. 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.