T 0301/18 (Dual component food product/MARK & CHAPPELL) 17-01-2022
A DUAL COMPONENT FOOD PRODUCT AND METHOD FOR THE PRODUCTION THEREOF
Herbert Ospelt Anstalt
Basis of decision - text or agreement to text withdrawn by patent proprietor
Basis of decision - patent revoked
I. This decision concerns the appeals filed by opponents 1 and 2 (appellant 1 and 2) against the decision of the opposition division to reject the oppositions against European patent No. 2 563 159.
II. The appellants requested that the decision under appeal be set aside and that the patent be revoked. The patent proprietor (respondent) replied to the statements setting out the grounds of appeal and filed auxiliary requests 1 and 2. It requested, among other things, that the appeals be dismissed.
III. The board summoned the parties to oral proceedings and issued a communication in which it set out its preliminary opinion on all requests on file.
IV. By letter dated 6 January 2022, the respondent declared the following:
"The Patentee hereby withdraws their request for Oral Proceedings.
The Patentee no longer approves the text in which the patent was granted."
V. The board canceled the oral proceedings.
1. Article 113(2) EPC stipulates that 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.
2. Agreement cannot be deemed to be given if the patent proprietor explicitly states that it no longer approves the text of the patent as granted. For the board, the patent proprietor unambiguously expressed that it neither approves the claims nor the description of the patent as granted. Although auxiliary claim requests are on file (auxiliary requests 1 and 2), it is manifest that the patent proprietor neither approves the description of the patent as granted nor has it provided a description to which it agrees.
3. Since the text of the patent is at the disposition of the patent proprietor, a patent cannot be maintained against its will.
4. In the case of T 73/84 (OJ EPO 1985, 241, Headnote and Reasons), the board decided that, if the proprietor of a European patent stated in opposition or appeal proceedings that it no longer approved the text in which the patent was granted, and did not submit any amended text, the patent was to be revoked. This approach was confirmed, inter alia, by decisions T 186/84 (OJ EPO 1986, 79), T 655/01, T 1526/06 and T 2405/12.
5. In the circumstances of the present case, the board sees no reasons to deviate from the principles set out in the above-mentioned decisions. The patent must therefore be revoked without going into any substantive issue.
For these reasons it is decided that:
1. The decision under appeal is set aside.
2. The patent is revoked.