T 0043/20 (Pharmaceutical compositions / VIFOR) 10-01-2023
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PHARMACEUTICAL COMPOSITIONS
Interquim S.A.
STADA Arzneimittel AG
Basis of decision - text or agreement to text withdrawn by patent proprietor
Basis of decision - patent revoked
I. Two oppositions were filed against European patent 2 222 285 (hereinafter "the patent").
II. The appeal was filed by opponent 1 (appellant) against the decision of the opposition division to reject the oppositions filed against the patent.
III. With the statement of grounds of appeal, the appellant requested that the decision under appeal be set aside and that the patent be revoked in its entirety.
IV. With the reply to the appeal, the patent proprietor (respondent) defended its case on the basis of the patent as granted and filed auxiliary requests.
V. The Board set out its preliminary opinion in a communication pursuant to Article 15(1) RPBA.
VI. Oral proceedings were held before the Board. In the course of the oral proceedings, the respondent declared that they no longer approved the text of the patent as granted, would not submit any new claim requests and withdrew all auxiliary requests.
1. Pursuant to Article 113(2) EPC, the EPO shall examine, and decide upon, the European patent only in the text submitted to it, or agreed, by the patent proprietor of the patent.
2. Such an agreement cannot be deemed to exist where - as in the present case - the patent proprietor expressly states that it no longer approves the text of the patent, will not be submitting an amended text and withdraws all pending auxiliary requests.
3. There is therefore no text of the patent on the basis of which the Board can consider the appeal. In these circumstances, the proceedings are to be terminated by a decision ordering revocation of the patent, without examination as to patentability (Case Law of the Boards of Appeal of the European Patent Office, 10th edition 2022, IV.D.2).
For these reasons it is decided that:
The decision under appeal is set aside.
The patent is revoked.