14-15 November 2018
|European Case Law Identifier:||ECLI:EP:BA:2016:T005112.20160622|
|Date of decision:||22 June 2016|
|Case number:||T 0051/12|
|IPC class:||A61F 13/15|
|Language of proceedings:||EN|
|Download and more information:||
|Title of application:||TEAR RESISTANT POROUS EXTENSIBLE WEB|
|Applicant name:||THE PROCTER & GAMBLE COMPANY|
|Opponent name:||SCA Hygiene Products AB|
|Relevant legal provisions:||
|Keywords:||Basis of decision - text or agreement to text withdrawn by patent proprietor
Basis of decision - patent revoked
Summary of Facts and Submissions
I. The appellant (opponent) filed an appeal against the decision of the opposition division by which the opposition against the European Patent No. 1 082 080 was rejected.
II. The appellant requested that the decision be set aside and that the patent be revoked.
III. In its reply to the appeal grounds the respondent (patent proprietor) requested to maintain the patent as granted or to maintain the patent according to one of the six auxiliary requests submitted therewith.
IV. The parties were summoned to oral proceedings before the Board. In a communication sent in preparation for the oral proceedings, the Board informed the parties of its preliminary opinion on the case.
V. By the letter dated 17 May 2016 the respondent submitted that the text on the basis of which the patent was granted was no longer approved, that all requests were withdrawn and requested furthermore that the patent be revoked.
VI. The oral proceedings were cancelled.
Reasons for the Decision
1. Pursuant to Article 105a(2) EPC a request for revocation of the patent by the proprietor may not be filed while opposition proceedings are pending. Therefore the corresponding request of the respondent patent proprietor submitted with its letter of 17 May 2016 can not be allowed.
2. On the other hand and according to Article 113(2) EPC the European Patent Office shall decide upon the European patent only in the text submitted to it, or agreed, by the proprietor of the patent.
This principle has to be strictly observed also in opposition and opposition appeal proceedings.
3. The respondent has withdrawn its approval to the text of the patent as granted and all auxiliary requests submitted with its reply to the appeal grounds, so there is no text of the patent on which basis an examination or a decision upon maintenance of the patent could be taken. Under these circumstances and in accordance with the case law of the Boards of appeal the only option available to the Board is to revoke the patent according to Article 101 EPC (see for example T 2405/12 and decisions cited therein).
For these reasons it is decided that:
1. The decision under appeal is set aside.
2. The patent is revoked.