T 0362/18 (GnRH antagonist/FERRING) of 15.2.2019

European Case Law Identifier: ECLI:EP:BA:2019:T036218.20190215
Date of decision: 15 February 2019
Case number: T 0362/18
Application number: 12165896.7
IPC class: A61K 38/08
A61K 38/09
A61P 35/00
Language of proceedings: EN
Distribution: D
Download and more information:
Decision text in EN (PDF, 237 KB)
Documentation of the appeal procedure can be found in the Register
Bibliographic information is available in: EN
Versions: Unpublished
Title of application: Method of treating prostate cancer with the GnRH antagonist degarelix
Applicant name: Ferring B.V.
Opponent name: Fresenius Kabi Deutschland GmbH
Generics [UK] Limited (trading as Mylan)
Board: 3.3.04
Headnote: -
Relevant legal provisions:
European Patent Convention Art 108
European Patent Convention R 99(2)
European Patent Convention R 101(1)
Keywords: Admissibility of appeal - missing statement of grounds


Cited decisions:
T 1042/07
Citing decisions:

Summary of Facts and Submissions

I. The appeal is directed against the decision of the opposition division of 9 October 2017, posted on 13 December 2017, to revoke the European patent No. 2 505 204.

II. The patent proprietor (appellant), having received the decision on 18 December 2017, filed a notice of appeal on 7 February 2018 and paid the appeal fee on the same day. The notice of appeal contained a request for oral proceedings for the event that the decision of the opposition division is not set aside.

III. By communication of 28 May 2018, received by the appellant, the Registrar of the Board informed the appellant that it appeared from the file that the written statement of grounds of appeal had not been filed, and that it was therefore to be expected that the appeal would be rejected as inadmissible pursuant to Article 108, third sentence, EPC in conjunction with Rule 101(1) EPC. The appellant was informed that any observations had to be filed within two months of notification of the communication. The communication also indicated that, unless a statement to the contrary was made by the appellant within the specified time period, the Board assumed that the appellant's request for oral proceedings did not apply to the issue of inadmissibility of the appeal because no grounds of appeal had been filed in due time.

IV. No reply was received.

Reasons for the Decision

1. No written statement setting out the grounds of appeal was filed within the four-month time limit provided by Article 108, third sentence, EPC, having expired on 23 April 2018 pursuant to Rule 126(2) and Rule 131(1) and (4) EPC. In addition, neither the notice of appeal nor any other document filed contains anything that could be regarded as a statement of grounds pursuant to Article 108 EPC and Rule 99(2) EPC. Therefore, the appeal has to be rejected as inadmissible (Rule 101(1) EPC).

2. Notwithstanding the appellant's conditional request for oral proceedings made in the notice of appeal, the present decision can be taken without the appointment of oral proceedings. Since the appellant has not provided any statement regarding the substantive merits of the appeal and has neither given any explanation or comments as to why no statement of grounds had been filed, nor reacted to the Board Registry's notification of an impending rejection of the appeal as inadmissible, the Board considers that the initial conditional request for oral proceedings has become obsolete. The lack of any response to the Board's notification is considered to be equivalent to an abandonment of the request for oral proceedings (see T 1042/07 of 22 August 2008, point 3 of the reasons).


For these reasons it is decided that:

The appeal is rejected as inadmissible.

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