T 0011/23 (Methicillin-resistant staphylococcus aureus of MREJ type XII/BECTON DICKINSON INFUSION THERAPY) 01-09-2025
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Sequences for detection and identification of methicillin-resistant staphylococcus aureus (MRSA) of MREJ type XII
HERTIN und Partner Rechts- und Patentanwälte PartG mbB
Beckman Coulter, Inc.
Basis of decision - text or agreement to text withdrawn by patent proprietor
Basis of decision - patent revoked
I. The appeal was filed by opponent 2 (the appellant) against the decision of the opposition division according to which the patent could be maintained on the basis of auxiliary request 4.
II. The appellant requested that the decision under appeal be set aside and amended such that the patent be revoked. The patent proprietor (respondent) replied to the appeal, thereby requesting inter alia that the appeal be dismissed.
III. The parties were summoned to oral proceedings and were informed of the board's provisional opinion on the issues of the case.
IV. With submission of 6 August 2025, the respondent stated the following:
"On behalf of the Patent Proprietor, we herewith withdraw all claim requests on file and no longer approve the text with which the patent was granted and maintained after opposition proceedings. Moreover, it is not intended to submit an amended text or further claim requests in the present appeal proceedings.
Finally, we withdraw our request for oral proceedings."
V. In view of this declaration, the oral proceedings were cancelled.
1. Article 113(2) EPC requires that the European Patent Office decides upon the European patent only in the text submitted to it, or agreed, by the proprietor of the patent.
2. By disapproving the granted text of the patent, the patent proprietor has withdrawn their agreement with any text for maintenance of the patent. There is therefore no approved text of the patent on the basis of which the patent could be maintained.
3. In these circumstances, the patent is to be revoked without any further assessment of issues relating to patentability (see, for example, T 73/84 (OJ EPO 1985, 241), T 186/84 (OJ EPO 1986, 79), T 1484/19 of 29 November 2022, T 1995/21 and T 1549/22, and Case Law of the Boards of Appeal of the European Patent Office, 11th edition, 2025, sections III.B.3.3 and IV.D.2).
For these reasons it is decided that:
1. The decision under appeal is set aside.
2. The patent is revoked.