T 1104/18 15-12-2020
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Method and system for monitoring the condition of livestock
DeLaval International AB
Smartbow GmbH
Nedap N.V.
Basis of decision - text or agreement to text withdrawn by patent proprietor
Basis of decision - patent revoked
I. The appellant-opponent 1 lodged an appeal, received on 30 April 2018, against the interlocutory decision of the Opposition Division posted on 8 March 2018 concerning maintenance of the European Patent No. 2798948 in amended form, and simultaneously paid the appeal fee. The statement setting out the grounds of appeal was received on 12 July 2018.
II. The respondent-proprietor also filed an appeal but withdrew it with letter of 29 June 2020.
III. The Opposition Division held that the auxiliary request 9 before it met the requirements of the EPC.
IV. The appellant-opponent 1 requests to set aside the decision under appeal and to revoke the patent. They auxiliarily request oral proceedings.
The opponents 2 and 3 as parties as of right have not made any submissions.
V. With letter of 8 December 2020 the respondent-proprietor stated that they no longer approve the text with which the patent was granted and that they will not be submitting an amended text. They also withdrew all requests currently on file.
1. The appeal is admissible
2. Pursuant to Article 113(2) EPC the EPO shall examine, and decide upon the European patent only in the text submitted to it, or agreed by the proprietor of the patent.
Such an agreement cannot be deemed to exist if the respondent-proprietor expressly states that they no longer approve the text of the patent as granted and withdraw all pending requests, as they did with letter of 8 December 2020 in the present case.
There is therefore no text of the patent on the basis of which the Board can consider the appeal. It is established case law that in these circumstances, the proceedings are to be terminated by a decision ordering revocation of the patent, without going into the substantive issues, see Case Law of the Boards of Appeal, 9th edition 2019 (CLBA) IV.D.2.
3. Since the Board decides in favour of the appellant-opponent 1, their request for oral proceedings, which was requested on a purely auxiliary basis, becomes moot.
For these reasons it is decided that:
1. The decision under appeal is set aside.
2. The patent is revoked.