European Round-Table on Patent Practice (EUROTAB)
|European Case Law Identifier:||ECLI:EP:BA:2008:T093908.20081211|
|Date of decision:||11 December 2008|
|Case number:||T 0939/08|
|IPC class:||D21G 1/00|
|Language of proceedings:||EN|
|Download and more information:||
|Title of application:||Method for producing calendared paper|
|Applicant name:||Metso Paper, Inc.|
|Opponent name:||Andritz Küsters GmbH|
|Relevant legal provisions:||
|Keywords:||Absence of text to be examined|
Summary of Facts and Submissions
I. The appellant (opponent) lodged an appeal against the interlocutory decision of the Opposition Division maintaining European patent No. 1 030 945 in amended form.
II. The appellant requests that the decision under appeal be set aside and that the patent in suit be revoked in its entirety.
III. In a letter dated 19 November 2008, the respondent (patent proprietor) withdrew consent to the text in which the patent in suit was maintained by the Opposition Division and stated that an amended text would not be submitted.
Reasons for the Decision
1. Article 113(2) EPC requires that the European Patent Office may only examine, and decide upon, the European patent in the text agreed by the proprietor of the patent.
2. In the letter of 19 November 2008, the respondent withdrew consent to the text in which the patent in suit was maintained by the Opposition Division. As a result, there is no text which can be examined in respect of the impediments to patentability raised by the appellant (cf. T 73/84 (OJ EPO 1985, 241)).
For these reasons it is decided that:
1. The decision under appeal is set aside.
2. The patent is revoked.