T 2524/12 (Anti-ERBB antibody cancer therapy/GENENTECH) of 11.7.2016

European Case Law Identifier: ECLI:EP:BA:2016:T252412.20160711
Date of decision: 11 July 2016
Case number: T 2524/12
Application number: 01939145.7
IPC class: A61K 39/395
A61K 31/335
G01N 33/574
A61P 35/00
Language of proceedings: EN
Distribution: D
Download and more information:
Decision text in EN (PDF, 246 KB)
Documentation of the appeal procedure can be found in the Register
Bibliographic information is available in: EN
Versions: Unpublished
Title of application: Gene detection assay for improving the likelihood of an effective response to an ErbB antagonist cancer therapy
Applicant name: Genentech, Inc.
Opponent name: BioGeneriX AG
Teva Pharmaceutical Industries Ltd.
Board: 3.3.04
Headnote: -
Relevant legal provisions:
European Patent Convention Art 113(2)
Keywords: Withdrawal of approval of text on which patent was granted - appeal dismissed


Cited decisions:
T 0163/99
T 1637/06
T 0784/14
Citing decisions:
T 0454/15
T 1021/15

Summary of Facts and Submissions

I. An appeal was lodged by the patent proprietor (hereinafter "the appellant") against the decision of the opposition division to revoke the European patent No. 1 282 443.

II. In its statement of grounds of appeal, the appellant requested that the decision under appeal be set aside and that a patent be granted on the basis of the set of claims of either the main request or one of the six auxiliary requests. In a common reply to the statement of grounds of appeal, the respondents (opponents 1 and 2) requested that the appeal be dismissed.

III. In a letter dated 9 June 2016 the appellant stated the following:

"The Proprietor no longer approves the text in which the patent was granted. In addition, we withdraw all of the claim requests in the proceedings".

IV. Subsequently, the oral proceedings which had been summoned to take place on 30 June 2016 were cancelled.

Reasons for the Decision

1. 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".

2. The appellant has withdrawn all claim requests and no longer approves the text in which the patent was granted (see section III above). It thus follows from the provision cited above that there is no subject-matter upon which the board could decide. In such a situation, where a substantive requirement for allowing the appeal is lacking, the proceedings should, in the board's view, be terminated by a decision ordering the dismissal of the appeal (see for example decisions T 163/99, T 1637/06 and T 784/14).


For these reasons it is decided that:

The appeal is dismissed.

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