T 1475/16 () of 7.2.2022

European Case Law Identifier: ECLI:EP:BA:2022:T147516.20220207
Date of decision: 07 February 2022
Case number: T 1475/16
Application number: 03761744.6
IPC class: C07H 19/06
C07H 19/10
C07H 19/16
C07H 19/20
C07H 19/04
C07H 19/044
C07H 19/048
C07H 19/052
C07H 19/056
C07H 19/12
C07H 19/14
C07H 19/22
C07H 19/23
A61K 31/7056
A61K 31/706
A61K 31/7064
A61P 31/14
Language of proceedings: EN
Distribution: D
Download and more information:
Decision text in EN (PDF, 261 KB)
Documentation of the appeal procedure can be found in the Register
Bibliographic information is available in: EN
Versions: Unpublished
Applicant name: Idenix Pharmaceuticals LLC
Université de Montpellier
Idenix SARL
Opponent name: Gilead Sciences, Inc.
Wiegeleben, Peter
F.Hoffmann-La Roche AG
Strawman Limited
Wächtershäuser & Hartz
Patentanwaltspartnerschaft mbB
Board: 3.3.02
Headnote: -
Relevant legal provisions:
European Patent Convention Art 113(2)
Keywords: Basis of decision - text or agreement to text withdrawn by patent proprietor


Cited decisions:
T 1021/15
Citing decisions:

Summary of Facts and Submissions

I. The appeal of the patent proprietors (hereinafter appellants) lies from the decision of the opposition division according to which European patent 1 523 489 was revoked.

II. The parties were summoned to oral proceedings, to be held by videoconference on 7 February 2022.

III. At the outset of oral proceedings, the appellants inter alia requested that the decision under appeal be reversed and set aside, and that the case be remitted to the opposition division for further prosecution on the basis of the main request (patent as granted), or, alternatively, of one of the sets of claims of the first to tenth auxiliary requests filed on 15 December 2015.

IV. The respondents (opponents) 1, 2, 4 and 5 inter alia requested that the appeal be dismissed.

V. During oral proceedings, the appellants withdrew their consent and agreement under Article 113(2) EPC to the text of the patent as granted and withdrew all auxiliary requests on file.

Reasons for the Decision

1. Under Article 113(2) EPC, the European Patent Office shall examine, and decide upon, the European patent only in the text submitted to it, or agreed, by the proprietor of the patent.

2. Since the appellants withdrew their consent and agreement under Article 113(2) EPC to the text of the patent and withdrew all auxiliary requests on file, there is no text of the patent submitted or agreed by the proprietors of the patent, on the basis of which the board can consider compliance with the requirements of the EPC and the allowability of the appeal.

3. In such a situation, where the appeal of the patent proprietor against a decision of the opposition division to revoke the patent lacks basis for a review of the appealed decision as to the substance, the proceedings should be terminated without addressing substantive issues (T 1021/15, reasons 2). Consequently, the opposition division's revocation of the patent becomes final. There are also no ancillary issues that would have to be dealt with by the board in the present case. Therefore, the appeal is to be dismissed.


For these reasons it is decided that:

The appeal is dismissed.

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