T 2632/16 (Method for stimulating the intestinal flora in infants delivered by … of 15.1.2021

European Case Law Identifier: ECLI:EP:BA:2021:T263216.20210115
Date of decision: 15 January 2021
Case number: T 2632/16
Application number: 09011197.2
IPC class: A23L33/00
Language of proceedings: EN
Distribution: D
Download and more information:
Decision text in EN (PDF, 237 KB)
Documentation of the appeal procedure can be found in the Register
Bibliographic information is available in: EN
Versions: Unpublished
Title of application: Method for stimulating the intestinal flora in infants delivered by caesarean section
Applicant name: N.V. Nutricia
Opponent name: Société des Produits Nestlé S.A.
Board: 3.3.09
Headnote: -
Relevant legal provisions:
European Patent Convention Art 101 (2007)
European Patent Convention Art 113(2) (2007)
European Patent Convention R 103(4)(a) (2020)
Keywords: Basis of decision - text or agreement to text withdrawn by patent proprietor
Basis of decision - patent revoked
Reimbursement of appeal fee at 25%
Reimbursement of appeal fee - withdrawal of appeal before decision announced at oral proceedings (yes)


Cited decisions:
T 2405/12
Citing decisions:

Summary of Facts and Submissions

I. This decision concerns the appeals filed by the patent proprietor and the opponent against the interlocutory decision of the opposition division holding the European patent No. 2 140 771 in amended form to be allowable.

II. In the written proceedings, the patent proprietor (appellant I) requested that the decision under appeal be set aside and the patent be maintained on the basis of the main request or auxiliary requests, filed with the reply to the opponent's appeal.

III. The opponent (appellant II) requested that the decision under appeal be set aside and the patent be revoked.

IV. The parties were summoned to oral proceedings and oral proceedings took place on 15 January 2021 by videoconference.

V. In the course of the oral proceedings, appellant I stated that it no longer approved the text of the patent in the form as held allowable by the opposition division, nor in any other form, and that it withdrew its appeal.

Reasons for the Decision

1. Article 113(2) EPC stipulates that the European Patent Office shall consider and decide upon the European patent only in the text submitted to it, or agreed, by the patent proprietor.

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

3. Where there is no text of the patent on which basis the board can consider the appeal of the opponent, the only possibility available to the board is to revoke the patent as envisaged in Article 101 EPC. In this context, reference is made to the Case Law of the Boards of Appeal of the EPO, in particular to T 2405/12 and the decisions cited therein.

4. The patent proprietor withdrew its appeal after the expiry of the period under Rule 103(3)(a) EPC but before the decision was announced at oral proceedings. The appeal fee of the patent proprietor is therefore to be reimbursed at 25% (Rule 103(4)(a) EPC).


For these reasons it is decided that:

1. The decision under appeal is set aside.

2. The patent is revoked.

3. The appeal fee of the patent proprietor shall be reimbursed at 25%.

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