T 1139/19 (Iron carboxymaltose complex/VIFOR) 24-05-2023
METHODS AND COMPOSITIONS FOR ADMINISTRATION OF IRON
Pharmacosmos Holding A/S
TEVA PHARMACEUTICAL INDUSTRIES, LTD.
STADA Arzneimittel AG
Taylor Wessing LLP
Generics [U.K.] Limited
I. The decision under appeal is the opposition division's interlocutory decision rejecting the patent proprietor's main request and finding that European patent No. 1 973 549 as amended in the form of the first auxiliary request met the requirements of the EPC.
II. Seven oppositions had been filed.
III. The patent proprietor (appellant-patent proprietor) and opponents 3 and 7 (appellant-opponents 3 and 7) each duly filed an appeal against the opposition division's decision.
Opponents 1, 2, 5 and 6 (parties as of right) each filed an appeal that they subsequently withdrew. Opponent 4 (party as of right) did not file any appeal.
IV. The board scheduled oral proceedings in line with the parties' requests and gave its preliminary opinion in a communication pursuant to Article 15(1) RPBA.
V. Oral proceedings were held before the board on 24 May 2023. During the oral proceedings, the appellant-patent proprietor stated that it withdrew the main request and all auxiliary requests submitted in the appeal proceedings and that it no longer approved the text of the patent.
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 text of the granted patent and withdrawing all amended text versions submitted to the EPO, the patent proprietor withdrew its approval of any text for maintenance of the patent. Therefore, 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.