European Round-Table on Patent Practice (EUROTAB)
|European Case Law Identifier:||ECLI:EP:BA:2012:T167410.20121022|
|Date of decision:||22 October 2012|
|Case number:||T 1674/10|
|IPC class:||B01F 17/00|
|Language of proceedings:||EN|
|Download and more information:||
|Title of application:||Process for dissolving lipophilic compounds and cosmetic composition|
|Opponent name:||BASF SE|
|Relevant legal provisions:||
|Keywords:||No text of the patent approved by the proprietor - revocation|
Summary of Facts and Submissions
I. This appeal is directed against the decision of the Opposition Division dated 25 May 2010 that the European patent No. 1 555 984 amended according to the then pending main request of the Patent Proprietor met the requirements of the EPC.
II. On 5 August 2010 the EPO received the Opponent's notice of appeal against this decision as well as the corresponding fee. The statement of grounds was received by the EPO on 29 September 2010.
The Patent Proprietor/Respondent replied with a letter dated 6 January 2011 declaring that it did approve the patent neither in the granted version nor in the amended version considered in the decision under appeal.
III. The Opponent/Appellant requested in writing that the decision under appeal be set aside and the patent be revoked. It also requested oral proceedings prior of any decision other than this.
Reasons for the decision
In the present case, a decision of the Opposition Division has been appealed by the Opponent/Appellant who requests revocation of the patent. This appeal is admissible. A decision must, thus, be taken.
The Patent Proprietor/Respondent has declared to approve neither the text of the patent as granted nor that of the amended patent found to meet the requirements of the EPC in the decision under appeal.
Consequently, the Board has no basis on which to make a decision on patentability as would be required by Article 113(2) EPC.
According to the established case law of the Boards of Appeal (see e.g. T 73/84, OJ EPO 1985, 241), if the Proprietor of a European patent states in opposition or appeal proceedings that he no longer approves the text in which the patent was granted and does not submit an amended text, the patent is to be revoked. In the Board's judgment, this finding also applies in the present case. The patent is, thus, revoked.
Summoning oral proceedings is not necessary as the decision is in line with the Opponent/Appellant's request.
For these reasons it is decided that:
1. The decision under appeal is set aside.
2. The patent is revoked.