T 2318/18 02-08-2019
Rubber composite and tire using the same
Basis of decision - text or agreement to text withdrawn by patent proprietor
Basis of decision - patent revoked
I. The appeal by the opponent (appellant) lies against the decision of the opposition division posted on 2 July 2018 rejecting the opposition filed against European patent No. 2 031 015.
II. In its statement setting out the grounds of appeal filed on 12 November 2018, the opponent (appellant) requested that the decision of the opposition division be set aside and the patent be revoked in its entirety.
III. The patent proprietor (respondent) did not reply to that statement of grounds of appeal within the deadline set in Article 12(1)(b) RPBA.
IV. With letter of 3 June 2019 the parties were summoned to oral proceedings.
V. With a letter of 26 June 2019 the respondent stated:
"The patent proprietor does no longer approve the text of the opposed patent in which it is granted and will not submit an amended text".
VI. Following that letter the oral proceedings were cancelled.
1. Under the provisions of Article 113(2) EPC, the EPO shall decide upon the European patent only in the text submitted to it or agreed by the proprietor of the patent.
2. In the present case the respondent/patent proprietor unambiguously indicated in his letter dated 26 June 2019 that he withdrew his approval of the text in which the patent had been maintained by the decision of the opposition division and expressed his disapproval of any amended version of the text. Therefore, agreement by the patent proprietor pursuant to Article 113(2) EPC cannot be held to be given.
3. Under such circumstances, a substantive requirement for maintaining the patent is lacking and 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 186/84, OJ EPO 1986, 79).
For these reasons it is decided that:
1. The decision under appeal is set aside.
2. European patent No. EP 2 031 015 is revoked.