T 0203/14 () of 28.11.2016

European Case Law Identifier: ECLI:EP:BA:2016:T020314.20161128
Date of decision: 28 November 2016
Case number: T 0203/14
Application number: 03794458.4
IPC class: C09J 123/08
Language of proceedings: EN
Distribution: D
Download and more information:
Decision text in EN (PDF, 226 KB)
Documentation of the appeal procedure can be found in the Register
Bibliographic information is available in: EN
Versions: Unpublished
Applicant name: MSI Technology, LLC
Opponent name: Westlake Chemical Corporation
Board: 3.3.09
Headnote: -
Relevant legal provisions:
European Patent Convention Art 101
European Patent Convention Art 111(1)
European Patent Convention Art 113(2)
Keywords: Basis of decision - text or agreement to text withdrawn by patent proprietor
Basis of decision - patent revoked


Cited decisions:
T 2405/12
Citing decisions:

Summary of Facts and Submissions

I. This decision concerns the appeal filed by the opponent against the interlocutory decision of the opposition division to maintain European patent N° 1 543 085 in amended form on the basis of the claims filed as main request with letter of 24 September 2013. The appellant requested that the decision be set aside and that the patent be revoked in its entirety.

II. On 28 November 2016 oral proceedings were held before the board. Following a discussion of the respondent's (patent proprietor's) requests then on file and the requests filed at the oral proceedings respectively, the respondent withdrew all requests then on file and stated that it no longer approved the text of the granted patent. It filed the corresponding statement in writing:

"The proprietor of EP 1 53 085 disapproves the text for grant. All requests currently on file in the appeal case T 203/14 are withdrawn".

Reasons for the Decision

1. Article 113(2) EPC requires that the European Patent Office shall decide upon the European patent only in the text submitted to and agreed on by the proprietor of the patent.

2. Agreement cannot be deemed to be given if the proprietor, without submitting an amended text, expressly states that he/she no longer approves the text of the patent as granted or previously amended.

3. In the present situation, where there is no text of the patent on which basis the Board can consider the appeal of appellant/opponent, the only possibility available to the Board is to revoke the patent as envisaged in Articles 111(1) together with 101 EPC. In this context, reference is made to the Case Law of the Boards of Appeal of the EPO, in particular 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.

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