T 2447/19 31-03-2023
Absorbent garment with strand coated adhesive components
Basis of decision - text or agreement to text withdrawn by patent proprietor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 decision of the opposition division in which it rejected the opposition against European patent No. 2 368 534.
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 dismissed and the patent be maintained as granted (main request), or, as an auxiliary measure, that the patent be maintained in amended form based on one of auxiliary requests 1 to 5 as filed together with the reply to the statement of grounds of appeal.
IV. The Board issued a summons to oral proceedings and a subsequent communication indicating its preliminary view on several issues of the case.
V. With letter dated 27 March 2023 the respondent withdrew all its requests and also its approval of the granted text in any form. It also requested revocation of the patent.
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.
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.