T 0789/13 () of 20.2.2018

European Case Law Identifier: ECLI:EP:BA:2018:T078913.20180220
Date of decision: 20 February 2018
Case number: T 0789/13
Application number: 06755404.8
IPC class: A61K 31/275
A61K 31/195
A61K 9/28
A61K 9/48
A61K 9/16
Language of proceedings: EN
Distribution: D
Download and more information:
Decision text in EN (PDF, 250 KB)
Documentation of the appeal procedure can be found in the Register
Bibliographic information is available in: EN
Versions: Unpublished
Applicant name: Orion Corporation
Opponent name: Teva Pharmaceutical Industries Ltd.
Meyer, Dr., Anne-Katrin
Board: 3.3.01
Headnote: -
Relevant legal provisions:
European Patent Convention Art 113(2)
Keywords: Basis of decision - text submitted or agreed by patent proprietor (no)


Cited decisions:
T 1244/08
T 2054/08
Citing decisions:

Summary of Facts and Submissions

I. Following the grant of European patent No. 1 896 006, two notices of opposition to that patent were validly filed. This appeal lies from the decision of the opposition division revoking the opposed patent.

II. With its statement setting out the grounds of appeal, the patentee (appellant) requested that the decision under appeal be set aside and that the patent be maintained on the basis of the claims as granted (which amounts to a request for rejection of the oppositions). Subsidiarily, the appellant requested that the patent be maintained in amended form on the basis of one of auxiliary requests 1 to 9 (all submitted with the statement of grounds).

III. In their respective replies to the appellant's statement of grounds, the respondents (opponents 1 and 2) requested that the appeal be dismissed.

IV. The board issued a summons to oral proceedings.

V. With letter dated 2 February 2018, the appellant stated the following:

"The Patentee hereby disapproves the text of the granted patent.

The Patentee will not be submitting an amended text.

Art. 113(2) EPC states that 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."

VI. The board cancelled the oral proceedings.

Reasons for the Decision

In the specific context of the appellant's declaration of 2 February 2018 (see above point V), the statement that "the Patentee will not be submitting an amended text" can only be regarded as a withdrawal of the then pending auxiliary requests.

According to established case law of the boards of appeal, the declaration of the appellant, as the proprietor of a patent that has been revoked by the opposition division, is to be interpreted as the withdrawal of its appeal (see e.g. decisions T 1244/08 and T 2054/08).

Consequently, the decision under appeal becomes final.


For these reasons it is decided that:

The appeal proceedings are terminated.

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