|European Case Law Identifier:||ECLI:EP:BA:2021:T244518.20211026|
|Date of decision:||26 October 2021|
|Case number:||T 2445/18|
|IPC class:||A61F 13/511
|Language of proceedings:||EN|
|Download and more information:||
|Title of application:||ARTICLE(S) WITH SOFT NONWOVEN WEB|
|Applicant name:||The Procter & Gamble Company|
|Opponent name:||Kimberly-Clark Worldwide, Inc.|
|Relevant legal provisions:||
|Keywords:||Basis of decision - text or agreement to text withdrawn by patent proprietor
Basis of decision - patent revoked
Summary of Facts and Submissions
I. In its decision dated 26 July 2018 the opposition division rejected the opposition filed against the European patent No. 2 916 788.
II. An appeal was filed by the opponent requesting that the decision under appeal be set aside and the patent be revoked.
III. In its reply to the appeal, the respondent (patent proprietor) requested that the appeal be dismissed or, in the alternative, that the patent be maintained on the basis of one of auxiliary requests 1 to 6.
IV. The Board issued a summons to oral proceedings.
V. In its letter dated 13 October 2021, the respondent declared that it no longer approved the text of the patent as granted, it withdrew all pending claim requests, and declared that it would not be submitting an amended text and not attend oral proceedings.
VI. The oral proceedings were subsequently cancelled.
Reasons for the Decision
1. 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 patent proprietor of the patent.
2. Such an agreement cannot be deemed to exist where - as in the present case - the patent proprietor expressly states that it no longer approves the text of the patent, withdraws all pending requests, and declares that it will not be submitting an amended text.
3. There is therefore no text of the patent on the basis of which the Board can consider the appeal. In these circumstances, the proceedings are to be terminated by a decision ordering revocation of the patent, without examination as to patentability (see e.g. Case Law of the Boards of Appeal of the European Patent Office, 9th edition 2019, IV.D.2).
For these reasons it is decided that:
1. The decision under appeal is set aside.
2. The patent is revoked.