T 0066/98 17-11-2004
The Procter & Gamble Company
Henkel Kommanditgesellschaft auf Aktien
I. The appeal is from a decision of the opposition division rejecting the oppositions which had been filed against the patent No. 04 440 858.
II. Opponent II filed an appeal against this decision on 13. January 1998 requesting that the decision be set aside and the patent be revoked. He paid the appeal fee at the same date. He filed the statement of the grounds of appeal on 27. March 1998.
III. Oral proceedings were scheduled on 20 September 2004. With a letter dated 13 July 2004, the representative of the patent proprietors informed the Board that they no longer agree with the text of the patent as granted and they did not intend to file an amended version, and that accordingly they understood that the patent would be revoked.
1. The appeal is admissible as complying with the requirements of Articles 106 to 108 and Rule 64 EPC.
2. In accordance with Article 113(2) EPC, the EPO can consider and decide upon the patent only in the text agreed by the proprietor of the patent. Such an agreement cannot be held to be given if the proprietor expressly no longer approves the text of the patent as granted and does not submit an amended text, accepting that the patent will be revoked as a necessary consequence of this non-approval.
In such circumstances, a substantive requirement for maintaining the patent is lacking. Although there is no specific provision allowing the proprietor of the European patent to surrender his rights to this European Patent, Article 113 EPC provides a legal basis for the Office to draw the legal consequence from this situation which otherwise could be a source of legal uncertainty concerning industrial property rights. It is established case-law that in these circumstances, since a requirement sine qua non to maintain the patent is lacking, the revocation of the patent is to be ordered without consideration of any further issues (see for examples: T 601/98 and T 836/97 both not published in the OJ EPO); T 73/84 OJ EPO 1985,241).
For these reasons it is decided that:
1. The decision under appeal is set aside
2. The patent is revoked