T 1929/17 24-11-2020
PROCESS FOR PRODUCING RUBBER-WET MASTERBATCH, RUBBER COMPOSITION, AND TIRE
I. This decision concerns the appeal filed by the opponent (appellant) against the interlocutory decision of the opposition division finding that, on the basis of the main request, the European patent No. 2 410 003 met the requirements of the EPC.
II. The appellant requested that the decision under appeal be set aside and that the patent be revoked in its entirety.
III. By letter dated 7 January 2020, the patent proprietor (respondent) declared:
"The patent proprietor no longer approves the text of the above-identified patent and will not be submitting an amended text. We understand that this patent will be revoked."
1. Pursuant to Article 113(2) EPC the EPO shall consider, 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 patent proprietor - as in the present case - expressly states that it no longer approves the text of the patent and declares that it will not be submitting an amended text.
3. 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 on the basis of which the board can maintain the patent. Thus, the board concludes that the patent is to be revoked as envisaged in Article 101 EPC. In this context, reference is made to the case law developed by the Boards of Appeal, in, inter alia, T 73/84 (OJ 1985, 241) and T 2405/12.
For these reasons it is decided that:
1. The decision under appeal is set aside.
2. The patent is revoked.