T 0163/99 (Fatty-acid esters/UNILEVER) 09-04-2002
Process for the synthesis of polyol fatty-acid esters
I. In a decision dated 9 December 1998, the Opposition Division revoked the patent No. 0 383 404 with the title "Process for the synthesis of polyol fatty-acid esters".
II. With their letter dated 12 January 1999, the Appellants (Patentees) filed a notice of appeal. They paid the appeal fee and submitted a statement of grounds of appeal on 2 April 1999. They requested that the patent be maintained on the basis of the main request attached to the decision of the Opposition Division, alternatively, on the basis of Auxiliary request I submitted together with the statement of grounds of appeal.
III. In a letter received on 28 February 2002, the Appellants informed the Board that "the appellant has the opinion that neither the claims of the main request, nor the claims of the auxiliary request nor the specification that are on file are suitable for patenting and that these claims are herewith withdrawn." (emphasis added).
1. The appeal complies with Articles 106 to 108 and Rule 64 EPC and is admissible.
2. In accordance with Article 113(2) EPC, "the European Patent Office shall consider and decide upon the European patent application or the European patent only in the text submitted to it, or agreed, by the applicant for or proprietor of the patent."
3. In the present case, the Appellants have abstained from withdrawing both the appeal and the patent. Yet, with their letter received on 28 February 2002, they have withdrawn all claims. This course of action entails that, pursuant to Article 113(2) EPC, there no longer exists a basis for the assessment of patentability. In the absence of an approved version of the specification and claims, the patent does not meet the requirements of the EPC (Article 97(1) EPC).
For these reasons it is decided that:
The appeal is dismissed.