T 1821/19 (Heteromultimeric Proteins/HOFFMANN-LA ROCHE) of 1.3.2022

European Case Law Identifier: ECLI:EP:BA:2022:T182119.20220301
Date of decision: 01 March 2022
Case number: T 1821/19
Application number: 11718831.8
IPC class: A61K 39/395
A61P 35/00
C07K 16/24
C07K 16/28
C07K 16/30
C07K 16/46
Language of proceedings: EN
Distribution: D
Download and more information:
Decision text in EN (PDF, 240 KB)
Documentation of the appeal procedure can be found in the Register
Bibliographic information is available in: EN
Versions: Unpublished
Title of application: Production of Heteromultimeric Proteins
Applicant name: F. Hoffmann-La Roche AG
Opponent name: Genmab A/S
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. Both the patent proprietor and the opponent filed appeals against the decision of the interlocutory decision of opposition division that the patent as amended in the form of auxiliary request 1 met the requirements of the EPC. The opponent subsequently withdrew their appeal.

II. The patent proprietor (appellant) filed their notice of appeal on 21 June 2019 and paid the appeal fee on the same day.

III. The notice of appeal contained a request for oral proceedings for the event that the decision of the opposition division was not set aside.

IV. By communication of 2 September 2019, 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.

V. 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. Thus, 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, a decision can be taken without appointing oral proceedings. Indeed, the appellant has not provided any statement on the substantive merits of the appeal or explanation of why no statement of grounds was filed. It did not react to the Registrar's notification of an impending rejection of the appeal as inadmissible either.

3. The lack of any response to such a notification is considered in the case law of the boards of appeal to be equivalent to an abandonment of the request for oral proceedings (see for instance decision T 1042/07 of 22 August 2008, point 3 of the reasons). For this reason the board considers that the initial conditional request for oral proceedings has become obsolete.


For these reasons it is decided that:

The appeal is rejected as inadmissible.

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