T 2130/10 (Hair bleach product/PROCTER & GAMBLE) 28-06-2011
Hair bleach product
Henkel AG & Co. KGaA
KPSS-Kao Professional Salon Services GmbH
I. The Appellants I and II (Opponents 1 and 2) lodged an appeal against the decision of the Opposition Division rejecting their opposition against European patent No. 1 372 588 pursuant to Article 101(2) EPC.
II. With a letter filed on 11 June 2011 the Proprietor of the patent-in-suit (Respondent) informed the Board that it did not approve the text of the patent as granted and requested the revocation of the patent.
III. The Appellants requested that the decision under appeal be set aside and that the patent be revoked.
IV. The Respondent requested that the patent be revoked.
1. The appeals are admissible.
2. In accordance with Article 113(2) EPC, the EPO can maintain a patent only on the basis on a text agreed by the Proprietor of the patent.
The Proprietor of the patent indicated that it did not agree to the text of the patent as granted and did not propose any other text for the maintenance of the patent-in-suit.
Under such circumstances where a fundamental requirement for maintaining the patent is lacking, the proceedings are to be terminated by a decision ordering revocation, without going into the substantive issues (see inter alia decision 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.