T 2318/18 () of 2.8.2019

European Case Law Identifier: ECLI:EP:BA:2019:T231818.20190802
Date of decision: 02 August 2019
Case number: T 2318/18
Application number: 08252313.5
IPC class: C08K 3/04
C09C 1/48
Language of proceedings: EN
Distribution: D
Download and more information:
Decision text in EN (PDF, 226.826K)
Documentation of the appeal procedure can be found in the Register
Bibliographic information is available in: EN
Versions: Unpublished
Title of application: Rubber composite and tire using the same
Applicant name: Bridgestone Corporation
Opponent name: Cabot Corporation
Board: 3.3.03
Headnote: -
Relevant legal provisions:
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Keywords: Basis of decision - text or agreement to text withdrawn by patent proprietor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 0186/84
Citing decisions:
-

Summary of Facts and Submissions

I. The appeal by the opponent (appellant) lies against the decision of the opposition division posted on 2 July 2018 rejecting the opposition filed against European patent No. 2 031 015.

II. In its statement setting out the grounds of appeal filed on 12 November 2018, the opponent (appellant) requested that the decision of the opposition division be set aside and the patent be revoked in its entirety.

III. The patent proprietor (respondent) did not reply to that statement of grounds of appeal within the deadline set in Article 12(1)(b) RPBA.

IV. With letter of 3 June 2019 the parties were summoned to oral proceedings.

V. With a letter of 26 June 2019 the respondent stated:

"The patent proprietor does no longer approve the text of the opposed patent in which it is granted and will not submit an amended text".

VI. Following that letter the oral proceedings were cancelled.

Reasons for the Decision

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

2. In the present case the respondent/patent proprietor unambiguously indicated in his letter dated 26 June 2019 that he withdrew his approval of the text in which the patent had been maintained by the decision of the opposition division and expressed his disapproval of any amended version of the text. Therefore, agreement by the patent proprietor pursuant to Article 113(2) EPC cannot be held to be given.

3. Under such circumstances, a substantive requirement for maintaining the patent is lacking and the proceedings are to be terminated by a decision ordering revocation, without going into the substantive issues (see e.g. decisions T 73/84, OJ EPO 1985, 241 and T 186/84, OJ EPO 1986, 79).

Order

For these reasons it is decided that:

1. The decision under appeal is set aside.

2. European patent No. EP 2 031 015 is revoked.

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