T 0103/20 (Antibody formulation/MILLENIUM) 24-11-2022
Formulation for anti- 4 7 antibody
Dehmel & Bettenhausen
Gill Jennings & Every LLP
Basis of decision - text or agreement to text withdrawn by patent proprietor
Basis of decision - patent revoked
I. Appeals were lodged by the patent proprietor (appellant I) and by opponent 1 (appellant II) against the interlocutory decision of the opposition division that European patent No. 2 704 742 in amended form and the invention to which it related, met the requirements of the EPC. The patent is entitled "Formulation for anti-4 7 antibody".
II. Opponent 2 made no substantive submissions in the appeal proceedings.
III. The board appointed oral proceedings and, in a communication pursuant to Article 15(1) RPBA, provided its preliminary appreciation of the appeals.
IV. Oral proceedings were held on 24 November 2022, as scheduled. Opponent 2 was not represented, as announced beforehand.
V. At the oral proceedings before the board, the patent proprietor stated that they no longer approved the text of the patent as granted or the text of the patent as maintained by the opposition division. Furthermore, they stated that they withdrew all the requests pending in the appeal proceedings and stated that they did not intend to submit any further amended text in the proceedings.
VI. At the end of the oral proceedings the chair announced the decision of the board.
1. The appeal complies with Articles 106 to 108 and Rule 99 EPC and is admissible.
2. 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 the proprietor of the patent.
3. Such an agreement is deemed not to exist if the patent proprietor, as is presently the case, declares that it withdraws the consent to the text of the patent as granted and as maintained by the opposition division, withdraws all auxiliary requests filed in the appeal proceedings and further declares that it does not intend to file any other request.
4. There is therefore no text of the patent on the basis of which the board can consider the appeal. According to the established case law of the boards of appeal, in these circumstances the proceedings are to be terminated by a decision ordering the revocation of the patent without examination as to patentability (see also decision T 73/84, OJ EPO 1985, 241 and the decisions mentioned in the Case Law of the Boards of Appeal of the EPO, 10th edition, 2022, IV.D.2). The present board has no reason to depart from the principles established in the above cited decisions. The patent must therefore be revoked, without a substantive examination first being carried out.
For these reasons it is decided that:
1. The appeal of the patent proprietor is dismissed.
2. The decision under appeal is set aside.
3. The patent is revoked.