T 1375/19 (Stabilized clostridial toxin/ALLERGAN) of 3.5.2021

European Case Law Identifier: ECLI:EP:BA:2021:T137519.20210503
Date of decision: 03 May 2021
Case number: T 1375/19
Application number: 13178507.3
IPC class: A61K 9/00
A61K 47/10
A61K 47/26
A61K 47/32
A61K 38/48
Language of proceedings: EN
Distribution: D
Download and more information:
Decision text in EN (PDF, 236 KB)
Documentation of the appeal procedure can be found in the Register
Bibliographic information is available in: EN
Versions: Unpublished
Title of application: Non-protein stabilized clostridial toxin pharmaceutical compositions
Applicant name: ALLERGAN, INC.
Opponent name: IPSEN PHARMA S.A.S.
Board: 3.3.07
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Keywords: Basis of decision - text or agreement to text withdrawn by patent proprietor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


Cited decisions:
T 0073/84
Citing decisions:

Summary of Facts and Submissions

I. In its interlocutory decision posted on 12 March 2019, the opposition division considered that European patent No. 2 679 217 (hereinafter: the patent) in an amended form met the requirements of the EPC.

II. The proprietor (hereinafter: appellant-patent proprietor) and the opponent (hereinafter: appellant-opponent) filed appeals against this decision.

The appellant-patent proprietor requested that the decision under appeal be set aside and that the patent be maintained as granted or, subsidiarily, that the patent be maintained on the basis of one of the auxiliary requests 1-7 as filed with the grounds of appeal.

The appellant-opponent requested that the decision under appeal be set aside and that the patent be revoked in its entirety.

III. With a letter dated 19 April 2021 the appellant-patent proprietor withdrew its appeal and requested 50% reimbursement of the appeal fee in line with Rule 103(3)a) EPC.

The appellant-patent proprietor was informed of the refund order in a communication dated 28 April 2021.

IV. In a letter dated 21 April 2021 the appellant-patent proprietor declared that it no longer approved the text in which the patent was granted, that it withdrew all auxiliary requests and that it did not intend to submit further amendments, observing that the patent is to be revoked.

Reasons for the Decision

1. The appellant-patent proprietor has indicated that it no longer agrees with the text of the patent as granted and that following the withdrawal of its auxiliary requests 1-7 it did not intend to provide any alternative claims. Pursuant to Article 113(2) EPC a patent can only be maintained on the basis of a text submitted or agreed to by the patent proprietor. In the absence of such agreed text the patent can only be revoked (cf decision T 0073/84 (OJ EPO 1985, 241)).


For these reasons it is decided that:

1. The decision under appeal is set aside.

2. The patent is revoked.

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