T 1413/11 () of 4.11.2013

European Case Law Identifier: ECLI:EP:BA:2013:T141311.20131104
Date of decision: 04 November 2013
Case number: T 1413/11
Application number: 03255095.6
IPC class: A23G 9/32
A23G 9/00
A23G 9/20
Language of proceedings: EN
Distribution: D
Download and more information:
Decision text in EN (PDF, 93 KB)
Documentation of the appeal procedure can be found in the Register
Bibliographic information is available in: EN
Versions: Unpublished
Title of application: Frozen aerated products
Applicant name: Unilever PLC
Unilever N.V.
Opponent name: NESTEC S.A.
Board: 3.3.09
Headnote: -
Relevant legal provisions:
European Patent Convention Art 113(2)
Keywords: No text agreed by the patentee - revocation of the patent


Cited decisions:
T 0601/98
Citing decisions:

Summary of Facts and Submissions

I. In its interlocutory decision posted on 5 April 2011, the opposition division decided that the European patent No. 1 400 176 could be maintained in amended form according to Article 101(3)(a) EPC.

II. The opponent, Nestec S.A., lodged an appeal against this decision on 7 June 2011 and paid the appeal fee on the same day. The statement of grounds of appeal was filed on 11 August 2011.

III. In a letter dated 11 October 2013 the joint patent proprietors, Unilever PLC and Unilever N.V., informed the board that:

"we no longer wish to maintain European Patent 1 400 176 and hereby withdraw our request that the Appeal be withdrawn".

In a further letter dated 29 October 2013 the patent proprietors clarified that:

"the patent proprietor no longer approves of the text of the patent as granted by the Opposition Division..."

Reasons for the Decision

1. The appeal is admissible.

2. Article 113(2) EPC requires that the EPO may decide upon the European patent only in the text submitted to it, or agreed by the proprietor of the patent. Agreement cannot be held to be given if the proprietor, without submitting an amended text, expressly states that he no longer approves the text of the patent as granted or previously amended. In such a situation a substantive requirements for maintaining the patent is lacking and the proceedings are to be terminated by a decision ordering revocation, without going into the substantive issues (see, for instance T 601/98).


For these reasons it is decided that:

The decision under appeal is set aside.

The patent is revoked.

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