T 2680/17 (Antimicrobial cleansing composition/SCA) 02-04-2019
LOW ALCOHOL ANTIMICROBIAL CLEANSING COMPOSITION
I. By way of its interlocutory decision, the opposition division found that European Patent No. 2 683 235 as amended met the requirements of the European Patent Convention.
II. The opponent (appellant) filed an appeal against this decision requesting revocation of the patent.
III. The patent proprietor (respondent) requested dismissal of the appeal as a main request and submitted auxiliary requests 1 to 8.
IV. With letter dated 28 March 2019, the respondent disapproved the text of the granted patent, indicating that it would not be submitting an amended text and that it expected the patent to be revoked. The request for oral proceedings was also withdrawn.
1. Under Article 113(2) EPC, the European Patent Office shall consider and decide upon the European patent only in the text submitted to it, or agreed, by the proprietor of the patent. This principle has to be observed also in opposition and opposition appeal proceedings.
2. The respondent, by withdrawing approval of the text of the granted patent, indicating that it would not be submitting an amended text and expecting the patent to be revoked, has thereby withdrawn its approval of any text for maintenance of the patent. Since the text of the patent is at the disposition of the patent proprietor, a patent cannot be maintained against the patent proprietor's will. There is therefore no text of the patent, on the basis of which the Board can maintain the patent.
3. In view of the above, the Board concludes that the patent must be revoked as envisaged in Article 101 EPC and also expected by the respondent. This conclusion is also in line with established case law following decision T 73/84, OJ 1985, 241 (see e.g. T 655/11 of 11 November 2005; T 220/12 of 22 June 2015; T 381/12 of 3 January 2018).
For these reasons it is decided that:
1. The decision under appeal is set aside.
2. The patent is revoked.