T 1153/22 (Pancreatic enzyme compositions / APTALIS PHARMA) 25-04-2024
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PANCREATIC ENZYME COMPOSITIONS AND METHODS FOR TREATING PANCREATITIS AND PANCREATIC INSUFFICIENCY
I. An opposition was filed against the European patent 2 477 645 (hereinafter "the patent").
II. The opposition division took the interlocutory decision that, on the basis of the auxiliary request 5 filed during oral proceedings on 30 November 2021, the patent met the requirements of the EPC.
III. The opponent (appellant) lodged an appeal against the above decision of the opposition division.
IV. With the statement of the grounds of appeal the appellant requested that the decision under appeal be set aside and the patent be revoked.
V. The patent proprietor (respondent) did not file any arguments in reply to the statement of the grounds of appeal.
VI. In the letter dated 15 March 2024 and received 11 April 2024, the respondent indicated that they withdrew their approval of the text in which the patent was granted and that the patent was to be revoked.
1. Pursuant to Article 113(2) EPC, the EPO shall decide upon the European patent only in the text submitted to it, or agreed, by the patent proprietor.
2. By expressly stating that they no longer approved the text of the granted patent and that the patent was therefore to be revoked, i.e. also implicitly withdrawing all pending requests, the respondent withdrew their approval of any text for maintenance of the patent.
3. Therefore, there is no approved text of the patent on the basis of which the Board can consider the appeal.
4. Under these circumstances, it is established case law that the patent is to be revoked without substantive examination as to the 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.