European Round-Table on Patent Practice (EUROTAB)
|European Case Law Identifier:||ECLI:EP:BA:2013:T262211.20131120|
|Date of decision:||20 November 2013|
|Case number:||T 2622/11|
|IPC class:||C11D 17/00
|Language of proceedings:||EN|
|Download and more information:||
|Title of application:||Detergent system|
|Applicant name:||The Procter & Gamble Company|
|Opponent name:||Henkel AG & Co. KGaA
|Relevant legal provisions:||
|Keywords:||Basis of decision - revocation of the patent at request of the patent proprietor|
Summary of Facts and Submissions
I. The three appeals by the Patent Proprietor (Appellant I) and the two Opponents (Appellants II and III) are from the interlocutory decision of the Opposition Division concerning maintenance of European patent no. 1 446 472 in amended form.
II. In its letter dated 16 October 2013 Appellant I stated that "the entire bundle of national patents derived from this case has been abandoned through non-payment of maintenance fees. The Proprietor is content that the appeal does not proceed."
III. In the communication pursuant to Rule 100(2) EPC dated 5 November 2013 the Board indicated inter alia that "The Proprietor's statement ... could also be understood to mean that the Proprietor is no longer interested at all in the patent in suit.
For the sake of procedural efficiency, the Proprietor thus is invited to indicate as soon as possible and within the time limit set by the present communication, whether it requests the revocation of the patent in suit (in this respect see Case Law of the Boards of Appeal of the EPO, 7th edition, 2013, IV.C.5.2, pages 847 and 848)."
IV. Appellant I stated in its letter of 19 November 2013 that "With reference to the communication dated 5 November 2013, the Proprietor requests revocation of this Patent."
Reasons for the Decision
1. The appeals are admissible.
2. The request of Appellant I for revocation of its patent implies that the Patent Proprietor withdraws its agreement to the text in which the patent was maintained in amended form by the Opposition Division and that it does not intend to submit any other text for the maintenance of the patent.
3. Article 113(2) EPC, however, stipulates that the EPO may decide upon a European patent only in the text submitted to it or agreed to by the Patent Proprietor. This substantive requirement for maintaining the contested patent is not fulfilled in the present case.
4. Accordingly, it is the established case law of the Boards of Appeal that if the Patent Proprietor itself requests, as in the present case, that the patent be revoked, the patent is to be revoked without a substantive examination of the alleged impediments to patentability (see T 186/84, OJ EPO 1986, 79, point 5 of the reasons).
For these reasons it is decided that:
1. The decision under appeal is set aside.
2. The patent is revoked.