T 0323/19 (SGLT inhibitor tablet/JANSSEN) 11-02-2022
PHARMACEUTICAL FORMULATIONS COMPRISING 1-(BETA-D-GLUCOPYRANOSYL)-2-THIENYLMETHYLBENZENE DERIVATIVES AS INHIBITORS OF SGLT
I. The decision under appeal is the opposition division's decision that European patent No. 2 568 988 as amended according to the main request, and the invention to which it relates, met the requirements of the EPC.
II. The opponent (appellant) filed an appeal requesting that the decision be set aside and the patent be revoked in its entirety.
III. In its reply to the statement of grounds of appeal, the patent proprietor (respondent) requested that the appeal be dismissed.
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. By letter dated 1 February 2022, the respondent stated that it no longer approved the text in which the patent had been granted. In addition, it withdrew all outstanding requests, including its claim requests and its request for oral proceedings.
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 By disapproving the granted text of the patent and withdrawing all pending requests, the respondent has withdrawn its approval of any text for maintenance of the patent.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:
The patent is revoked.