T 0197/14 05-04-2017
COMPOSITION AND METHOD FOR PROMOTING HAIR GROWTH
I. European Patent 1 673 058 was opposed on the grounds that its subject-matter lacked inventive step and it extended beyond the content of the application as filed. By an interlocutory decision posted on 29 November 2013, the opposition division maintained the patent in amended form.
II. The opponent (appellant) lodged an appeal against that decision and filed the statement setting out the grounds of appeal on 9 April 2014. The patent proprietor (respondent) replied to the appeal with letter of 31 July 2014. Both parties made a request for oral proceedings.
III. By letter of 31 March 2017, the respondent requested the revocation of the opposed patent and withdrew its request for oral proceedings.
1. The respondent's request for revocation of the patent indicates that it withdraws its agreement to the text of the patent as granted as well as to the text in which the patent was maintained in amended form according to the decision under appeal and that it does not intend to submit any other text for the maintenance of the patent.
2. Article 113(2) EPC, however, stipulates that the EPO may decide upon a European patent only in the text submitted to it, or agreed by the patentee. This substantive requirement for maintaining the contested patent is not fulfilled in the present case and therefore the proceedings are to be terminated by a decision ordering revocation, without going into the substantive issues (see e.g. decisions T 73/84, OJ EPO 1985, 241 and T 1851/09 of 9 October 2012 not published in OJ EPO).
For these reasons it is decided that:
1. The decision is set aside.
2. The patent is revoked.