T 0756/20 (The Procter & Gamble/Delivery particles) 26-09-2022
DELIVERY PARTICLES WITH A PLURALITY OF CORES
Dalli-Werke GmbH & Co. KG
Danisco US Inc.
Henkel AG & Co. KGaA
Basis of decision - text or agreement to text withdrawn by patent proprietor
Basis of decision - revocation of the patent at request of the patent proprietor
I. Appeals were filed by the patent proprietor and by opponent 1 against the decision of the opposition division to maintain European patent No. 2 596 093 on the basis of the claims of auxiliary request 7 filed on 8 November 2019.
II. In its statement of grounds of appeal, opponent 1 requested to revoke the patent in its entirety.
III. In reply to the preliminary opinion of the board, the proprietor withdrew its appeal and the requests to maintain the patent as granted or on the basis of auxiliary requests 1 to 6.
IV. At the oral proceedings, which took place on 26 September 2022, the patent proprietor withdrew the only pending request, namely auxiliary request 7, and stated that it did no longer approve the text of the patent in any form.
V. The opponent 1 and appellant requested that the appealed decision be set aside and the patent be revoked in its entirety.
1. According to Article 113(2) EPC, the EPO shall decide on European patents only in the text submitted to it or agreed upon by the patent proprietor.
2. Since the patent proprietor withdrew the only pending request and expressly declared disapproval of any text for maintenance of the patent, there is no version of the patent on which the board could base the assessment of the appeal.
3. In these circumstances, the proceedings must be terminated with a decision ordering the revocation of the patent without addressing the substantial arguments (Case Law of the Boards of Appeal, 10th 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.