T 2663/17 (Dishwashing detergent composition / PROCTER & GAMBLE) 18-09-2020
Automatic dishwashing detergent composition
Henkel AG & Co. KGaA
Dalli-Werke GmbH & Co. KG
I. The appeals of opponents 1 and 3 are against the decision of the opposition division to maintain European patent No. 2 100 949 in amended form .
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 in the version maintained by the opposition division. It also filed various auxiliary requests.
IV. In advance of the oral proceedings scheduled for 28 September 2020 the board issued a communication under Article 15(1) RPBA 2020 containing its preliminary opinion.
V. In a letter dated 8 September 2020 the respondent declared the following: "We disapprove the text of the above patent".
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 8 September 2020 has explicitly disapproved the text of the patent 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 as well as the text in which it was maintained by the opposition division 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).
4. The patent in suit is thus to be revoked.
For these reasons it is decided that:
The decision under appeal is set aside.
The patent is revoked.