T 0435/18 (High protein liquid composition/NUTRICIA) of 28.6.2022

European Case Law Identifier: ECLI:EP:BA:2022:T043518.20220628
Date of decision: 28 June 2022
Case number: T 0435/18
Application number: 09718670.4
IPC class: A23L 33/135
A23L 33/17
A23L 33/185
A23L 33/19
A23L 33/00
Language of proceedings: EN
Distribution: D
Download and more information:
Decision text in EN (PDF, 256 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Versions: Unpublished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
Fonterra Co-Operative Group Limited
Société des Produits Nestlé S.A.
Arla Foods Amba
FrieslandCampina Nederland B.V.
Board: 3.3.09
Headnote: -
Relevant legal provisions:
European Patent Convention Art 113(2)
European Patent Convention R 103(4)(a)
Keywords: Basis of decision - text or agreement to text withdrawn by patent proprietor
Basis of decision - patent revoked
Reimbursement of appeal fee - withdrawal of appeal


Cited decisions:
T 0073/84
T 0186/84
T 0655/01
T 1526/06
T 2405/12
Citing decisions:

Summary of Facts and Submissions

I. Appeals were filed by the patent proprietor and the five opponents against the opposition division's decision according to which the European patent in amended form was allowable.

II. During the oral proceedings held before the board, the patent proprietor withdrew its appeal and stated that it no longer approved of the text of the patent in any form.

III. The opponents requested that the decision under appeal be set aside and that the patent be revoked.

Reasons for the Decision

1. Under Article 113(2) EPC, 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. By disapproving the granted text of the patent in any form, the patent proprietor has withdrawn its approval of any text for maintenance of the patent. 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. There is therefore no text of the patent on the basis of which the board can consider the appeals of the opponents.

3. In the case of T 73/84 (OJ EPO 1985, 241, Headnote and Reasons), the board decided that if the proprietor of a European patent stated in opposition or appeal proceedings that it no longer approved the text in which the patent was granted, and did not submit any amended text, the patent was to be revoked. This approach was confirmed, inter alia, by decisions T 186/84 (OJ EPO 1986, 79), T 655/01, T 1526/06 and T 2405/12.

4. In the circumstances of the present case, the board sees no reasons for deviating from the principles set out in the above-mentioned decisions. The patent must therefore be revoked, without a substantive examination first being carried out.

5. The patent proprietor withdrew its appeal after the expiry of the time limit set under Rule 103(3)(a) EPC but before the decision was announced at oral proceedings. Therefore, its appeal fee is 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 patent proprietor's appeal fee is reimbursed at 25%.

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