T 1727/23 07-10-2025
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ARRAY OF ABSORBENT ARTICLES WITH EAR PORTIONS
Basis of decision - text or agreement to text withdrawn by patent proprietor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 interlocutory decision of the opposition division in which it found that European patent No. 3 538 046 in an amended form met the requirements of the EPC.
II. The appellant requested in its statement of grounds of appeal that the decision under appeal be set aside and the patent be revoked.
III. In its reply to the appeal, the respondent (patent proprietor) requested that the appeal be dismissed or that the patent be maintained according to one of the auxiliary requests 1, 2, 2a, 3, 3a, 4, 5, 6 or 7 filed with the reply to the statement of grounds of appeal.
IV. The parties were summoned to oral proceedings before the Board of Appeal. With a communication pursuant to Article 15(1) of the Rules of Procedure of the Boards of Appeal (RPBA) the parties were informed of the Board's provisional opinion.
V. Oral proceedings were held on 7 October 2025.
At the end of the oral proceedings, the respondent withdrew all of its requests on file as well as its approval of any text for maintenance of the patent.
The appellant requested that the decision under appeal be set aside and the European patent be revoked.
1. According to Article 113(2) EPC the European Patent Office shall decide upon the European patent only in the text submitted to it, or agreed, by the proprietor of the patent.
2. The respondent has withdrawn its approval to the text of the patent as granted and to all auxiliary requests submitted during the appeal procedure. There is thus no text of the patent upon which maintenance of the patent could be based.
Under these circumstances and in accordance with the case law of the boards of appeal the only option available to the Board is to revoke the patent according to Article 101 EPC (see for example T 2405/12 and decisions cited therein).
For these reasons it is decided that:
1. The decision under appeal is set aside.
2. The patent is revoked.