T 2405/12 11-05-2016
HETEROGENEOUS SURGE MATERIAL FOR ABSORBENT ARTICLES
SCA Hygiene Products AB
The Procter & Gamble Company
I. In its interlocutory decision dated 26 September 2012 the opposition division found that European patent No. 0 952 800 in an amended form met the requirements of the EPC.
II. An appeal against this interlocutory decision was filed by the appellant (opponent I) requesting that the decision be set aside and the patent be revoked. An appeal was also filed by the appellant (patent proprietor).
III. The Board issued a summons to oral proceedings followed by a communication in which the Board indicated its provisional opinion, stating inter alia that the ground for opposition under Article 100(b) EPC seemingly prejudiced the maintenance of the patent.
IV. With letter dated 4 May 2016, the appellant/opponent filed further submissions in support of its request for revocation. By letter of the same date, the appellant/patent proprietor withdrew its appeal, stating that it disapproved the granted text of the patent in any form and furthermore requesting revocation of the patent.
V. The oral proceedings were subsequently cancelled.
1. Under Article 113(2) EPC 1973, the European Patent Office shall consider and 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.
2. The appellant/patent proprietor, in addition to withdrawing its appeal, by disapproving the granted text of the patent in any form has thereby withdrawn its approval of any text for maintenance of the patent. Since the text of the patent is at the disposition of the patent proprietor, a patent cannot be maintained against the patent proprietor's will. There is therefore no text of the patent on the basis of which the Board can consider the appeal of appellant/opponent I.
3. However, the patent proprietor cannot have the proceedings terminated by stating that it is surrendering the European patent, since this is not provided for in the Convention for the procedure before the EPO. Also revocation at the request of the patent proprietor in the framework of opposition or opposition appeal proceedings is not possible, as it is expressly excluded by Article 105a(2) EPC. At the same time, the proceedings ought to be terminated as quickly as possible in the interests of legal certainty. The only possibility in such a case is for the Board to revoke the patent as envisaged in Article 101 EPC.
4. In view of the above, the Board concludes that the patent must be revoked. This conclusion is also in line with established case law developed by the Boards of Appeal in inter alia T 73/84, T 186/84, T 237/86, T 459/88, T 655/01, T 1526/06 and T1960/12.
For these reasons it is decided that:
1. The decision under appeal is set aside.
2. The patent is revoked.