T 1037/19 (PCV2 immunogenic compositions/BOEHRINGER INGELHEIM) of 3.7.2020

European Case Law Identifier: ECLI:EP:BA:2020:T103719.20200703
Date of decision: 03 July 2020
Case number: T 1037/19
Application number: 10174465.4
IPC class: C07K14/01
Language of proceedings: EN
Distribution: D
Download and more information:
Decision text in EN (PDF, 259 KB)
Documentation of the appeal procedure can be found in the Register
Bibliographic information is available in: EN
Versions: Unpublished
Title of application: PCV2 immunogenic compositions for use in a method of preventing PCV2 infection
Applicant name: Boehringer Ingelheim Animal Health USA Inc.
Opponent name: Intervet International BV (opposition withdrawn)
Eli Lilly and Company
Board: 3.3.04
Headnote: -
Relevant legal provisions:
European Patent Convention Art 113(2) (2007)
Keywords: Agreement to text withdrawn by patent proprietor - appeal dismissed


Cited decisions:
T 0454/15
Citing decisions:

Summary of Facts and Submissions

I. The appeal by the patent proprietor (appellant) lies from the opposition division's decision revoking European patent No. 2 281 829 (henceforth: the patent).

II. In the statement setting out the grounds of appeal, the appellant requested that the decision under appeal be set aside and the patent be maintained as granted (main request) or alternatively, that the patent be maintained in amended form on the basis of any of auxiliary requests 1 to 11. Oral proceedings were requested in case the main request could not be allowed.

III. With letter dated 15 April 2019 and filed on 26 August 2019 opponent 1 (respondent I) withdrew their opposition and ceased to be a party to the proceedings.

IV. Opponent 2 (respondent II) filed a reply to the statement of grounds of appeal and requested that the appeal be dismissed and oral proceedings on an auxiliary basis.

V. The board issued a summons to oral proceedings accompanied by a communication pursuant to Article 15(1) RPBA.

VI. In their letter dated 20 May 2020 the appellant declared that:

"The Appellant no longer approves the text of the patent as granted and will not be proposing an amended text. The Appellant understands that the consequence of this action is that the patent will be revoked immediately, and that the European patent shall be deemed not to have had effect from the outset."

VII. By a communication dated 28 May 2020 the parties were informed that the oral proceedings were cancelled.

Reasons for the Decision

1. The appeal complies with Articles 106 to 108 and Rule 99 EPC and is therefore admissible.

2. 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.

3. The appellant no longer approves the text in which the patent was granted and has, by stating that it "will not be proposing an amended text", withdrawn any pending claim request.

4. In the present case, since the patent had already been revoked by the opposition division and, as correctly pointed out in decision T 454/15, cannot be revoked again, the effect of this declaration filed on 20 May 2020 is that the appeal shall be dismissed.


For these reasons it is decided that:

The appeal is dismissed.

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