T 0808/15 (GM-CSF antagonist/KALOBIOS) of 12.2.2019

European Case Law Identifier: ECLI:EP:BA:2019:T080815.20190212
Date of decision: 12 February 2019
Case number: T 0808/15
Application number: 09702831.0
IPC class: C07K 16/24
A61K 39/395
A61P 19/10
Language of proceedings: EN
Distribution: D
Download and more information:
Decision text in EN (PDF, 259.316K)
Documentation of the appeal procedure can be found in the Register
Bibliographic information is available in: EN
Versions: Unpublished
Title of application: Methods of treating bone-loss disorders using a GM-CSF antagonist
Applicant name: Kalobios Pharmaceuticals, Inc.
Opponent name: MorphoSys AG
Huenges Martin c/o Maiwald Patentanwalts GmbH
Board: 3.3.04
Headnote: -
Relevant legal provisions:
European Patent Convention Art 113(2)
Keywords: Basis of decision - text or agreement to text withdrawn by patent proprietor
Catchwords:

-

Cited decisions:
T 0073/84
Citing decisions:
-

Summary of Facts and Submissions

I. Appeals were lodged by the two opponents (appellants) against the interlocutory decision of the opposition division concerning the maintenance of the European Patent No. 2 245 062 in amended form.

II. Both appellants requested that the decision under appeal be set aside and that the patent be revoked. Oral proceedings were requested on an auxiliary basis.

III. The patent proprietor (respondent) requested that the appeals be dismissed. Oral proceedings were requested on an auxiliary basis.

IV. As all parties had requested oral proceedings, the board issued a summons to oral proceedings to be held on 6 June 2019, accompanied by a communication of the board.

V. By letter dated 10 January 2019 the respondent submitted that:

"The patent proprietor (respondent) hereby surrenders European Patent No. 2245062. The proprietor no longer approves the text in which the European patent was maintained by the Opposition Division, withdraws all pending claim requests, and will not be submitting an amended text.

The revocation of the above European patent by the Board of Appeal is awaited in due course.

Evidently, the oral proceedings scheduled for 6 June 2019 are no longer required and can be cancelled."

VI. The parties were informed by a communication dated 11 February 2019 that the oral proceedings had been cancelled.

Reasons for the Decision

1. The appeals comply with Articles 106 to 108 and Rule 99 EPC and are therefore admissible.

Disapproval of the text of the patent by the patent proprietor

2. Pursuant to 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 cannot be deemed to exist if the patent proprietor - as in the present case - expressly states that it no longer approves the text in which the European patent was maintained by the opposition division, withdraws all pending claim requests, and will not be submitting an amended text (see section V).

4. There is therefore no text of the patent on the basis of which the board can consider the appeal. In these circumstances, the proceedings are to be terminated by a decision ordering revocation of the patent, without examination as to patentability (see decision T 73/84, OJ EPO, 1985, 241 and Case Law of the Boards of Appeal of the EPO, 8th edition, 2016, IV.C.5.2, page 979).

Cancellation of the oral proceedings

5. The statement contained in the letter of the respondent that "the oral proceedings scheduled for 6 June 2019 are no longer required and can be cancelled" (see section V) can only be interpreted as a withdrawal of its earlier request for oral proceedings. The summons to oral proceedings could be cancelled and the present decision could be taken without holding oral proceedings because the decision is in line with both appellants main requests (see section II).

Order

For these reasons it is decided that:

1. The decision under appeal is set aside.

2. The patent is revoked.

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