T 1653/18 () of 8.2.2022

European Case Law Identifier: ECLI:EP:BA:2022:T165318.20220208
Date of decision: 08 February 2022
Case number: T 1653/18
Application number: 10183144.4
IPC class: C07H 19/10
C07H 19/20
A61K 31/7084
A61P 35/00
Language of proceedings: EN
Distribution: D
Download and more information:
Decision text in EN (PDF, 255 KB)
Documentation of the appeal procedure can be found in the Register
Bibliographic information is available in: EN
Versions: Unpublished
Title of application: Modified 2' and 3'-nucleoside prodrugs for treating flaviridae infections
Applicant name: IDENIX Pharmaceuticals, Inc.
Centre National de la Recherche Scientifique (C.N.R.S.)
UNIVERSITA' DEGLI STUDI DI CAGLIARI
L'Université Montpellier II
Opponent name: Gilead Sciences, Inc.
Generics (U.K.) Limited
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Keywords: Basis of decision - text or agreement to text withdrawn by patent proprietor
Catchwords:

-

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(hereinafter appellants) lies from the decision of the opposition division according to which European patent 2 332 952 was revoked.

II. The parties were summoned to oral proceedings, which were held by videoconference on 8 February 2022.

III. At the outset of oral proceedings, the appellants requested inter alia 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 sixth auxiliary requests filed on 19 September 2016.

IV. The opponent (respondent) 1 requested inter alia that the appeal be dismissed.

V. Oral proceedings by videoconference were held on 8 February 2022. 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.

Order

For these reasons it is decided that:

The appeal is dismissed.

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