T 1753/12 (Absorbent article / THE PROCTER & GAMBLE COMPANY) 31-01-2017
An absorbent article comprising an agent able to convey a perception to the wearer
I. The appeal of the Appellant (Opponent) lies from the decision of the Opposition Division, which found that the European Patent No. 1 250 940 in its amended form according to the then pending main request fulfilled the requirements of the EPC.
II. The Board issued a summons to oral proceedings before the Board scheduled for 7 March 2017.
III. With a letter dated 24 January 2017 the Respondent (Patent Proprietor) informed the Board that he no longer approved the text on the basis of which the European Patent No. 1 250 940 was granted and that he withdrew all his requests. Further, he informed the Board that he would not attend the oral proceedings scheduled for 7 March 2017.
IV. Consequently, the date for the oral proceedings was cancelled and the Board issued a decision in writing.
1. Pursuant to Article 113(2) EPC the EPO shall examine, and decide upon the European Patent only in the text submitted to it, or agreed by the proprietor of the patent.
2. Such an agreement cannot be deemed to exist if the proprietor - as in the present case - expressly states that it no longer approves the text of the patent as granted an withdraws all requests (see section III, above).
3. There is therefore no text of the patent on the basis of which the Board can consider the appeal. It is established case law of the Boards that in these circumstances, the proceedings are to be terminated by a decision ordering revocation of the patent, without going into the substantive issues (see decision T 73/84, OJ EPO, 1985, 241; T 1536/14, not published in the OJ EPO; Case Law of the Boards of Appeal, 8th edition 2016, IV.C.5.2).
4. The Board has no reason in the present case to deviate from the consistent approach of the Boards of Appeal.
For these reasons it is decided that:
5. The decision under appeal is set aside.
6. The patent is revoked.