T 1233/19 27-07-2022
MODIFIED POLYETHYLENE COMPOSITIONS
Basis of decision - text or agreement to text withdrawn by patent proprietor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 from the interlocutory decision of the opposition division concerning maintenance of patent EP 2 758 441 in amended form according to the claims of the second auxiliary request (claims set E filed with letter of 22 November 2018) and a description adapted thereto.
II. In their statement of grounds of appeal the appellant requested that the decision of the opposition division decision be set aside and the patent be revoked.
III. In their rejoinder to the statement of grounds of appeal the patent proprietor (respondent) requested that the appeal be dismissed (main request) or, alternatively, that the patent be maintained in amended form according to any of the auxiliary requests filed therewith.
IV. The parties were summoned to oral proceedings and a communication pursuant to Article 15(1) RPBA 2020 was issued by the Board.
V. With letter of 20 July 2022 the respondent stated:
"The Proprietor no longer approves of the text in which European Patent No. 2 758 441 was granted, and of any amended text filed during the opposition and appeal proceedings".
VI. With letter of 27 July 2022 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/proprietor unambiguously indicated in their letter dated 20 July 2022 that they withdrew their approval of the text in which the patent was granted and expressed their disapproval of any version of the text of the then pending requests. 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. 2 758 441 is revoked.