T 0124/08 22-06-2010
Chocolate formulation process
I. European patent No. 0 958 747 was granted in respect of European patent application No. 98401124.7, which was filed in the name of Doveurope S.A. on 11 May 1998. The mention of grant was published on 3 November 2004 in Bulletin 2004/45.
II. A notice of opposition was filed by NESTEC S.A. on 3 August 2005 requesting revocation of the patent in its entirety on the grounds that the claimed subject-matter was neither novel nor inventive (Article 100(a) EPC) and that the patent did not disclose the invention in a manner sufficiently clear and complete for it to be carried out by a person skilled in the art (Article 100(b) EPC).
III. In its decision which was announced orally on 8 October 2007 and issued in writing on 16 November 2007, the opposition division decided to reject the opposition.
IV. By letter of 18 January 2008, the appellant (opponent) filed a notice of appeal against the above decision and paid the prescribed fee on the same day. A statement setting out the grounds of appeal was filed by letter of 26 March 2008.
The appellant (opponent) requested that the decision of the opposition division be set aside in its entirety and that the European patent be revoked.
V. By letter of 4 June 2010, the respondent (patent proprietor) stated that "he no longer approves the text of the above European patent and therefore the patent should be unconditionally revoked".
1. The appeal is admissible.
2. Article 113(2) EPC requires that the EPO may only decide on the text of the European patent "submitted to it, or agreed" by the proprietor.
In its letter of 4 June 2010, the proprietor has clearly withdrawn its agreement to the text of the opposed patent without filing any amended text on which further prosecution of the appeal could be based.
3. The absence of any agreed text of the patent precludes any examination as to whether the grounds for opposition laid down in Article 100 EPC prejudice the maintenance of the opposed patent (see decisions T 73/84, OJ EPO 1985, 241; T 186/84, OJ EPO 1986, 79; T 157/85 of 12 May 1986, not published in OJ EPO; and T 1655/07 of 10 June 2009, equally not published in OJ EPO).
For these reasons it is decided that:
1. The decision under appeal is set aside.
2. The patent is revoked.