T 0660/18 () of 31.3.2021

European Case Law Identifier: ECLI:EP:BA:2021:T066018.20210331
Date of decision: 31 March 2021
Case number: T 0660/18
Application number: 08726071.7
IPC class: A01P 13/00
A01N 25/00
A01N 39/02
A01N 39/04
A01N 37/40
A01N 43/40
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Versions: Unpublished
Applicant name: Dow AgroSciences LLC
Opponent name: Nufarm Australia Limited
Board: 3.3.02
Headnote: -
Relevant legal provisions:
European Patent Convention Art 113(2)
Keywords: Basis of decision - text or agreement to text withdrawn by patent proprietor / revocation requested by patent proprietor
Basis of decision - patent revoked


Cited decisions:
T 0073/84
T 0186/84
Citing decisions:

Summary of Facts and Submissions

I. This decision concerns the appeal filed by the opponent (appellant) against the decision of the opposition division (decision under appeal) to reject the opposition against European patent no. 2 124 577 (patent in suit).

II. During the oral proceedings before the board on 31 March 2021, the patent proprietor (respondent) withdrew the approval of the text of the granted patent in suit and of all claim requests on file. It also requested that the patent in suit be revoked. At the end of the oral proceedings, the chair announced the order of the present decision.

III. The parties' requests relevant for this decision were as follows.

The appellant requested that the decision under appeal be set aside and that the patent in suit be revoked in its entirety.

The respondent requested that the patent in suit be revoked.

Reasons for the Decision

1. Pursuant to Article 113(2) EPC the European Patent Office examines, and decides upon, the European patent application or the European patent only in the text submitted to it, or agreed, by the applicant or the proprietor of the patent.

2. The respondent no longer approves the text in which the patent was granted and has withdrawn all pending claim requests. Therefore, there is no longer any text of the patent in the proceedings on the basis of which the board can consider compliance with the requirements of the EPC. The respondent even expressly requests that the patent in suit be revoked.

3. It is established case law that in the present circumstances the patent must be revoked without further substantive examination as to patentability (e.g. T 73/84, points 3 to 5 of the reasons; T 186/84, points 4 and 5 of the reasons). The board has no reason to deviate from this consistent approach of the boards of appeal, and so the patent is to be revoked.


For these reasons it is decided that:

1. The decision under appeal is set aside.

2. The patent is revoked.

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