Introduction
In decision T 2323/22 of the European Patent Office (EPO) Board of Appeal, the patent in question, European Patent No. 3023500, was revoked following the patent proprietor's withdrawal of approval of the text. The decision highlights the consequences when a patent proprietor withdraws consent to the text of the patent, both as granted and as amended. This decision emphasizes the role of Article 113(2) EPC and the power of patent holders in the fate of their patents during opposition and appeal proceedings.
Summary of the Invention
The patent EP 3023500, titled "Insect cells for the production of AAV vectors", relates to the production of adeno-associated virus (AAV) vectors using insect cells. AAV vectors are widely used in gene therapy as delivery systems to insert genetic material into cells. This invention focuses on improving the production efficiency of these vectors using insect cells, providing a novel approach that is scalable and cost-effective for producing these therapeutic tools.
Key Elements of the Decision
Arguments of the Patentee (uniQure IP B.V.)
- Initially, the patentee sought to maintain the patent in an amended form. However, in a letter dated 12 August 2024, the patentee withdrew its approval of the text of the patent as granted and maintained, and did not propose any alternative text. As a result, they also withdrew their appeal.
Arguments of the Opponent (Weickmann & Weickmann)
- The opponent, who had sought revocation of the patent, argued that the patent should be revoked entirely. With the patentee’s withdrawal of consent to the text, the opponent's main request for revocation was automatically fulfilled.
Decision of the Board
- The Board ruled that without the patent proprietor’s approval of the text, the patent could no longer be maintained, as stipulated under Article 113(2) EPC. As there was no text to examine, the Board revoked the patent without further substantive examination, in line with established case law (T 186/84, T 646/08, T 2434/18).
Lessons to Be Learned
The lesson from this decision is the critical importance of the patent proprietor's approval of the text during opposition and appeal proceedings. According to Article 113(2) EPC, the EPO can only examine a patent based on the text submitted or agreed to by the proprietor. Once the proprietor withdraws approval of the text, the patent cannot be maintained, and revocation follows. This gives patent holders significant control over the continuation of their patents but also highlights the risk of losing the patent if no agreement is reached on the text.
Contact
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Legal Disclaimer
The information provided in this blog post is for generalinformational purposes only and does not constitute legal advice. The summary and analysis of the EPO case are based on publicly available information and are intended to offer insights into the decision and its implications. This content should not be used as a substitute for professional legal advice tailored to your specific circumstances. For advice related to any specific legal matters, you should consult a qualified attorney.