T 2661/17 (Dishwashing composition / PROCTER & GAMBLE) 21-09-2021
Automatic dishwashing detergent composition
Henkel AG & Co. KGaA
Dalli-Werke GmbH & Co. KG
I. The appeals of opponents 1 and 2 were against the decision of the opposition division to maintain European patent no. 2 100 950 in amended form on the basis of the main request filed by letter dated 7 September 2016.
II. The appellants requested that the decision under appeal be set aside and the patent be revoked.
III. The patent proprietor (also respondent) defended the patent as upheld by the opposition division and filed an amended set of claims as auxiliary request 1.
IV. In advance of the oral proceedings scheduled for 17 September 2021 the board issued a communication under Article 15(1) RPBA 2020 containing its preliminary opinion.
V. In a letter dated 16 September 2021 the respondent declared the following: "The proprietor disapproves the text of the patent as maintained and all claim requests on file are withdrawn. We therefore understand that the proceedings are now closed and the oral proceedings scheduled for 17 September will not take place. Accordingly we will send a copy directly to the Registrar by email and to the other parties."
VI. Oral proceedings were then cancelled.
1. Article 113(2) EPC requires that the European Patent Office decides upon the European patent only in the text submitted to it, or agreed, by the proprietor of the patent.
2. The patent proprietor by letter of 16 September 2021 has explicitly disapproved the text of the patent as upheld by the opposition division and withdrawn all claim requests on file without filing any other amended text on which further prosecution of the appeal could be based. This disapproval includes thus the text upon which the patent was granted and the text of all the requests filed during the appeal proceedings.
There is thus no text of the patent which can be deemed to be approved by the patent proprietor.
3. It is established case law of the boards of appeal 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, inter alia, decisions T 73/84, OJ EPO 1985, 241; T 186/84, OJ EPO 1986, 79; T 1513/16 and Case Law of the Boards of Appeal of the EPO, 9th edition, 2019, IV.D.2, page 1122).
For these reasons it is decided that:
1. The decision under appeal is set aside.
2. The patent is revoked.