T 1844/17 () of 25.6.2021

European Case Law Identifier: ECLI:EP:BA:2021:T184417.20210625
Date of decision: 25 June 2021
Case number: T 1844/17
Application number: 11730112.7
IPC class: A61P 35/00
A61K 31/337
A61K 31/517
A61K 39/00
A61K 39/395
A61K 45/06
C07K 16/28
C07K 16/30
C07K 16/32
Language of proceedings: EN
Distribution: D
Download and more information:
Decision text in EN (PDF, 233 KB)
Documentation of the appeal procedure can be found in the Register
Bibliographic information is available in: EN
Versions: Unpublished
Title of application: USE OF ERBB3 INHIBITORS IN THE TREATMENT OF TRIPLE NEGATIVE BREAST CANCER
Applicant name: Merrimack Pharmaceuticals, Inc.
Opponent name: Daiichi Sankyo Co Ltd
Board: 3.3.01
Headnote: -
Relevant legal provisions:
European Patent Convention Art 113(2)
Keywords: Basis of decision - text or agreement to text withdrawn by patent proprietor
Basis of decision - patent revoked
Catchwords:

-

Cited decisions:
T 0073/84
Citing decisions:
T 1936/18
T 3007/18
T 0320/19
T 0411/20

Summary of Facts and Submissions

I. An appeal was lodged by the opponent against the interlocutory decision of the opposition division that European patent no. 2 544 680 in amended form and the invention to which it related met the requirements of the EPC.

II. The board issued a summons to oral proceedings to be held on 15 September 2021.

III. By letter dated 7 May 2021, the patent proprietor withdrew its approval of the text in which the patent had been granted and stated that it would not file an amended text and requested that the patent be revoked.

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. Since the patent proprietor withdrew the approval of the text in which the patent was granted and confirmed that it would not be submitting an amended text, there is no text of the patent on the basis of which the board can consider compliance with the requirements of the EPC.

3. It is established case law of the boards of appeal that, under these circumstances, the patent is to be revoked without further substantive examination as to patentability (see also T 73/84, OJ EPO 1985, 241). There are also no ancillary issues that would have to be dealt with by the board in the present appeal case.

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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