T 1600/21 25-04-2023
METHOD OF TREATING A VEGETABLE OIL
Upfield Europe B.V.
Basis of decision - text or agreement to text withdrawn by patent proprietor
Basis of decision - patent revoked
I. This decision concerns the appeals filed by the proprietor of the patent and opponents 1 and 3 against the interlocutory decision of the opposition division that the European patent as amended met the requirements of the EPC.
II. On appeal, by letter dated 21 April 2023, the patent proprietor submitted the following declaration:
"The patentee no longer approves the text of the above-mentioned patent as granted. The patentee will not be pursuing the Main Request and Auxiliary Requests on file. Furthermore, we will not be filing a replacement text."
III. Opponents 1 and 3 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 proprietor, has to be strictly observed also in opposition and opposition appeal proceedings.
2. As the proprietor of the patent no longer approves the text of the patent as granted (main request) and does not intend to pursue the patent according to the auxiliary requests on file, there is no text of the patent on which the board can base its consideration of the appeals of opponents 1 and 3.
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.