T 2016/17 () of 1.3.2021

European Case Law Identifier: ECLI:EP:BA:2021:T201617.20210301
Date of decision: 01 March 2021
Case number: T 2016/17
Application number: 09718935.1
IPC class: B65D23/00
Language of proceedings: EN
Distribution: D
Download and more information:
Decision text in EN (PDF, 233 KB)
Documentation of the appeal procedure can be found in the Register
Bibliographic information is available in: EN
Versions: Unpublished
Applicant name: N.V. Nutricia
Opponent name: Fresenius Kabi Deutschland GmbH
Board: 3.2.07
Headnote: -
Relevant legal provisions:
European Patent Convention Art 113(2) (2007)
Keywords: Basis of decision - text or agreement to text withdrawn by patent proprietor
Basis of decision - patent revoked


Cited decisions:
T 0073/84
Citing decisions:

Summary of Facts and Submissions

I. Both the opponent and the patent proprietor lodged an appeal in the prescribed form and within the prescribed time limit against the decision of the opposition division to maintain European patent No. 2 259 976 in amended form on the basis of the then auxiliary request 2.

II. In a letter dated 5 November 2020 the patent proprietor unconditionally withdrew their appeal. Furthermore, the patent proprietor stated that they disapproved of the text in which the patent was maintained by the interlocutory decision under appeal and also of the other requests presently on file.

Reasons for the Decision

1. Due to the patent proprietor's unconditional declaration of non-approval of the text of the patent as maintained by the opposition division and of all pending requests, the Board can no longer decide on the appeal on its merits.

2. Article 113(2) EPC allows the European Patent Office to examine and to decide upon the European patent only in the text submitted to it, or agreed, by the proprietor of the patent. Since the text of the patent is at the disposal of the patent proprietor, a patent cannot be maintained against the patent proprietor's will (see Case Law of the Boards of the Boards of Appeal, 9th edition 2019, IV.D.2, second paragraph and decision T 73/84 (OJ EPO 1985, 241)).

3. The patent can therefore only be revoked.

4. The present decision is taken without oral proceedings since the non-approval of all the patent proprietor's requests affects their original request for oral proceedings as well.


For these reasons it is decided that:

1. The decision under appeal is set aside.

2. The patent is revoked.

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