T 1484/19 (Methods for evaluating peptide mixtures/MOMENTA) 29-11-2022
METHODS OF EVALUATING PEPTIDE MIXTURES
Generics (U.K.) Limited (trading as Mylan)
Basis of decision - text or agreement to text withdrawn by patent proprietor
Basis of decision - patent revoked
I. Appeals were filed by opponents 1 and 2 against the decision of the opposition division rejecting their oppositions.
II. The appellants requested that the decision under appeal be set aside and the patent be revoked in its entirety.
III. With their letter dated 24 November 2022 the patent proprietor stated that they no longer approved the text in which the patent had been granted and would not submit an amended text. They also withdrew all auxiliary requests filed during appeal proceedings.
1. Under Article 113(2) EPC, the European Patent Office shall consider and decide upon the European patent only in the text submitted to it, or agreed, by the proprietor of the patent. This principle has to be strictly observed also in opposition and opposition appeal proceedings.
2. By disapproving the granted text of the patent in any form, the patent proprietor has withdrawn its approval of any text for maintenance of the patent. Since the text of the patent is at the disposition of the patent proprietor, a patent cannot be maintained against the patent proprietor's will. There is therefore no text of the patent on the basis of which the board can consider the appeals filed by the opponents.
3. In the case of T 73/84 (OJ EPO 1985, 241, Headnote and Reasons), the board decided that if the proprietor of a European patent stated in opposition or appeal proceedings that it no longer approved the text in which the patent was granted, and did not submit any amended text, the patent was to be revoked. This approach was confirmed inter alia by decisions T 186/84 (OJ EPO 1986, 79), T 655/01, T 1526/06 and T 2405/12.
4. Furthermore, as clarified in decision T 186/84, the examination as to whether the grounds for opposition laid down in Article 100 EPC prejudice the maintenance of the patent becomes not merely superfluous but impossible since the absence of a valid text of the patent precludes any substantive examination of the alleged impediments to patentability.
5. In the circumstances of the present case, the board sees no reasons for deviating from the principles set out in the above-mentioned decisions. The patent must therefore be revoked, without a substantive examination first being carried out.
For these reasons it is decided that:
1. The decision under appeal is set aside.
2. The patent is revoked.