T 0875/21 (Method of making structured protein compositions/NESTLÉ) 19-04-2023
METHOD OF MAKING STRUCTURED PROTEIN COMPOSITIONS
Société des Produits Nestlé S.A.
Basis of decision - text or agreement to text withdrawn by patent proprietor
Basis of decision - patent revoked
I. Appeals were filed by opponent 1 and the patent proprietor against the opposition division's decision which found that the European patent as amended according to the auxiliary request 9 as filed during oral proceedings before the opposition division meets the requirements of the EPC.
II. During the oral proceedings held before the board, the patent proprietor withdrew all claim requests on file and its agreement to the text of the patent in any form.
III. Opponents 1 and 2 requested that the decision under appeal be set aside and that the patent be revoked.
1. Under Article 113(2) EPC, the European Patent Office shall examine, and decide upon, the European patent only in the text submitted to it, or agreed, by the proprietor of the patent. This principle, according to which the text of the patent is at the disposition of the patent proprietor, has to be strictly observed also in opposition and opposition appeal proceedings.
2. As the patent proprietor withdrew all claim requests and its agreement to the text of the patent in any form, there is no text of the patent on which the board can base its consideration of the opponent's appeal.
3. If the proprietor of a European patent states in opposition or appeal proceedings that it no longer approves the text in which the patent was granted, and does not submit any amended text, the patent is to be revoked (see Case Law of the Boards of Appeal, 10th edition 2022, IV.D.2, third paragraph and III.B.3.3, first paragraph). The patent must therefore be revoked, without any preceding substantive examination.
For these reasons it is decided that:
1. The decision under appeal is set aside.
2. The patent is revoked.