T 0476/19 20-10-2022
Procter & Gamble Business
Services Canada Company
Basis of decision - text or agreement to text withdrawn by patent proprietor
Basis of decision - patent revoked
I. An appeal was filed by the appellant (opponent) against the interlocutory decision of the opposition division, in which it found that, account being taken of the amendments made, European patent No. 2 319 361 met the requirements of the EPC.
II. The appellant requested that the decision under appeal be set aside and the patent be revoked.
III. The respondent (patent proprietor) requested that the appeal be rejected and the patent be maintained in amended form.
IV. The Board issued a summons to oral proceedings and a subsequent communication containing its provisional opinion on several matters of the case.
V. In a first letter closely before the date of the oral proceedings, the respondent withdrew its request for oral proceedings. In a second letter it also withdrew all pending requests and its approval of the text of the patent as granted. It also requested revocation of the patent.
VI. The oral proceedings were subsequently cancelled.
1. Pursuant to Article 113(2) EPC, the EPO shall examine, and decide upon a European patent only in the text submitted to it, or agreed, by the patent proprietor. Such an agreement cannot be deemed to exist where the patent proprietor states that it no longer approves the text of the patent, withdraws all pending requests, and proposes no text for maintenance of the patent. In the present case, the respondent also explicitly requested revocation of the patent. In the given context it is thus clear from this statement that no text for maintenance is approved.
2. In such a case, there is no text of the patent on the basis of which the Board can consider the appeal. Under these circumstances, the proceedings are to be terminated by a decision ordering revocation of the patent, without examination as to patentability (see e.g. Case Law of the Boards of Appeal of the European Patent Office, 10**(th) edition 2022, IV.D.2).
For these reasons it is decided that:
1. The decision under appeal is set aside.
2. The patent is revoked.