T 1288/18 () of 12.2.2019

European Case Law Identifier: ECLI:EP:BA:2019:T128818.20190212
Date of decision: 12 February 2019
Case number: T 1288/18
Application number: 09769822.9
IPC class: A23K 10/30
A23K 50/00
Language of proceedings: EN
Distribution: D
Download and more information:
Decision text in EN (PDF, 224.359K)
Documentation of the appeal procedure can be found in the Register
Bibliographic information is available in: EN
Versions: Unpublished
Title of application: FEED COMPRISING RAPESEED MEAL
Applicant name: J-Oil Mills, Inc.
Opponent name: Cargill, Incorporated
Board: 3.3.09
Headnote: -
Relevant legal provisions:
European Patent Convention Art 101
European Patent Convention Art 113(2)
Keywords: Basis of decision - text or agreement to text withdrawn by patent proprietor
Basis of decision - patent revoked
Catchwords:

-

Cited decisions:
T 0073/84
T 2405/12
Citing decisions:
-

Summary of Facts and Submissions

I. This decision concerns the appeal of the opponent/appellant against the decision of the opposition division rejecting the opposition filed against European patent EP 2 289 347.

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

III. By letter dated 21 November 2018, the patent

proprietor/respondent declared:

"We kindly inform you that the patentee no longer approves the text of the above-identified patent as granted and has no intention of submitting any further amended text. The patentee hereby requests that the patent be revoked."

Reasons for the Decision

1. Pursuant to Article 113(2) EPC the EPO shall consider, and decide upon, the European patent only in the text submitted to it, or agreed, by the proprietor of the patent.

2. Such an agreement cannot be deemed to exist if the proprietor - as in the present case - expressly states that it no longer approves the text of the patent as granted and declares that it will not be submitting an amended text.

3. Where there is no text of the patent on which basis the board can consider the appeal of the appellant/opponent, the only possibility available to the board is to revoke the patent as envisaged by Article 101 EPC. In this context reference is made to T 73/84 (OJ EPO 1985, 241) as well as to T 2405/12 and the decisions cited therein.

Order

For these reasons it is decided that:

1. The decision under appeal is set aside.

2. The patent is revoked.

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