T 0522/15 () of 7.3.2019

European Case Law Identifier: ECLI:EP:BA:2019:T052215.20190307
Date of decision: 07 March 2019
Case number: T 0522/15
Application number: 02776295.4
IPC class: A61F 13/15
Language of proceedings: EN
Distribution: D
Download and more information:
Decision text in EN (PDF, 243.644K)
Documentation of the appeal procedure can be found in the Register
Bibliographic information is available in: EN
Versions: Unpublished
Title of application: METHOD FOR MAKING AN ABSORBENT ARTICLE WITH PRINTED ELASTOMERS
Applicant name: KIMBERLY-CLARK CORPORATION
Opponent name: The Procter & Gamble Company
Essity Hygiene and Health Aktiebolag
Board: 3.2.06
Headnote: -
Relevant legal provisions:
European Patent Convention Art 101
European Patent Convention Art 105a(2)
European Patent Convention Art 113(2)
Keywords: -
Catchwords:

-

Cited decisions:
T 0073/84
T 0186/84
T 0237/86
T 0459/88
T 0655/01
T 1526/06
T 1960/12
Citing decisions:
-

Summary of Facts and Submissions

I. In its interlocutory decision dated 14 January 2015 the opposition division found that European patent No. 1 455 706 according to a main request met the requirements of the EPC.

II. An appeal against this decision was filed by the appellant (opponent I) requesting that the decision be set aside and the patent be revoked.

III. In its letter of response, the respondent (patent proprietor) requested that the appeal be dismissed or, in the alternative, that the patent be maintained according to either auxiliary request 1 or 2.

IV. In preparation for oral proceedings the Board issued a communication containing inter alia its provisional opinion that the subject-matter of claim 1 of the main request appeared not to involve an inventive step (Article 56 EPC) and that the subject-matter of claim 1 of each of the auxiliary requests seemingly contravened Article 123(2) EPC.

V. With letter of 4 March 2019 the respondent indicated that it withdrew all its requests in relation to the patent in suit and withdrew approval of the granted text in any form. As a consequence it requested that the patent be revoked.

Reasons for the Decision

1. Under Article 113(2) EPC 1973, 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 strictly observed also in opposition and opposition appeal proceedings.

2. 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. The respondent, with its letter of 4 March 2019, withdrew its approval of any text for maintenance of the patent. There is therefore no text of the patent on the basis of which the Board can consider the appeal. It is moreover clear that the respondent wishes to prevent any text whatsoever of the patent from being maintained.

3. It is noted that revocation of the patent at the request of the patent proprietor in the framework of opposition or opposition appeal proceedings is not possible, as it is expressly excluded by Article 105a(2) EPC. At the same time, the proceedings ought to be terminated as quickly as possible in the interests of legal certainty. The only possibility in such a case is for the Board to revoke the patent as envisaged, for other reasons, in Article 101 EPC.

4. In view of the above, the Board concludes that the patent must be revoked. This conclusion is also in line with case law developed by the Boards of Appeal in inter alia decisions T 73/84, T 186/84, T 237/86, T 459/88, T 655/01, T 1526/06 and T1960/12.

Order

For these reasons it is decided that:

1. The decision under appeal is set aside.

2. The European patent is revoked.

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