T 0319/20 (Silicon dioxide treated serine protease/BAXALTA) 22-03-2022
Removal of serine proteases by treatment with finely divided silicon dioxide
CSL Behring GmbH
Basis of decision - text or agreement to text withdrawn by patent proprietors
Basis of decision - patent revoked
I. The appeals lodged by the patent proprietors and the opponents lie from the decision of the opposition division that European patent No. 2 575 762 in its amended form based on auxiliary request 3d fulfilled the requirements of the EPC.
II. With their statement of grounds of appeal the patent proprietors requested that the decision under appeal be set aside and the patent be maintained as granted, or alternatively on the basis of one of the (re-filed) sets of claims of auxiliary requests 1 to 3 and description versions 3, 3b, 3c and 3d (identical to the requests dealt with in the decision under appeal) and auxiliary requests 4 to 9 (originally filed on 12 April 2018).
III. With their statements of grounds of appeal, the opponents requested that the decision under appeal be set aside and the patent be revoked.
IV. All parties requested oral proceedings as an auxiliary measure.
V. The board appointed oral proceedings and, in a communication pursuant to Article 15(1) RPBA, provided its preliminary appreciation of some matters concerning the appeal.
VI. In a letter dated 15 March 2022, the patent proprietors declared as follows:
"The Patent Proprietors herewith declare that they no longer approve the text in which the patent was granted, and that they no longer approve the amended text of the patent that is contained in any of the Requests that they have filed during the present opposition/appeal proceedings.
Additionally, the Patent Proprietors herewith withdraw their appeal."
VIII. The board cancelled the oral proceedings.
1. The appeals of the opponents comply with Articles 106 to 108 and Rule 99 EPC and are admissible.
2. Pursuant to Article 113(2) EPC the EPO shall examine, and 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 proprietors - as in the present case - expressly declare that they no longer approve the text in which the patent was granted, and that they no longer approve the amended text of the patent contained in any of the requests filed during the opposition/appeal proceedings (see section VI.).
4. There is therefore no text of the patent on the basis of which the board can decide. In these circumstances, the patent is to be revoked, without assessing issues relating to patentability (see decision T 73/84, OJ EPO 1985, 241, followed by numerous decisions, see Case Law of the Boards of Appeal of the European Patent Office, 9th edition 2019, IV.D.2). The board has no reason to deviate from this approach of the boards of appeal.
5. Revocation of the patent is also the main request of the opponents (see section III.). There are also no ancillary issues that need to be dealt with by the board in the present appeal case. The decision in the present appeal case can therefore be taken without holding oral proceedings.
6. In view of the point in time of the withdrawal of the patent proprietors' appeal, the appeal fee is reimbursed in accordance with Rule 103(4)(a) EPC.
For these reasons it is decided that:
1. The decision under appeal is set aside.
2. The patent is revoked.