T 2428/19 (RANKL Antagonist/ORIENTAL YEAST) 09-11-2022
CANCER IMMUNOPOTIENTING AGENT CONTAINING RANKL ANTAGONIST
Basis of decision - text or agreement to text withdrawn by patent proprietor
Basis of decision - patent revoked
I. The appeal lodged by the opponent (appellant) lies from the decision of the opposition division rejecting the opposition.
II. The patent proprietor (respondent) replied to the appeal.
III. The appellant requested that the decision under appeal be set aside and the patent be revoked. The respondent requested that the appeal be dismissed.
IV. The board summoned the parties to oral proceedings in accordance with their requests and subsequently issued a communication pursuant to Article 15(1) RPBA 2020 setting out the board's preliminary appreciation of substantive and legal matters concerning the appeal.
V. With a letter dated 8 November 2022 the respondent informed the board as follows:
"With regard to the above-mentioned patent, we hereby notify the EPO that the patentee no longer approves of the text of the patent as granted.
The patentee is not pursuing any of our pending requests on file, including the auxiliary claim requests, and will not propose any amended text.
We also withdraw our request for oral proceedings."
1. The appeal of the opponent complies with the requirements of Articles 106 to 108 EPC and the further provisions referred to in Rule 101 EPC and is admissible.
2. 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.
3. 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. Furthermore, they withtdrew all the auxiliary requests pending in the appeal proceedings. Consequently, there is no longer any text of the patent in the proceedings approved by the patent proprietor which the board can consider for compliance with the requirements of the EPC.
4. 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, 10th edition 2022, section IV.D.2). The board has no reason to deviate from this case law in the present case.
5. Revocation of the patent complies with the request of the appealing opponent. Therefore, the present decision can be taken without holding oral proceedings
(Article 116(1) EPC and Article 12(8) RPBA 2020).
For these reasons it is decided that:
1. The decision under appeal is set aside.
2. The patent is revoked.