T 3007/18 () of 9.12.2021

European Case Law Identifier: ECLI:EP:BA:2021:T300718.20211209
Date of decision: 09 December 2021
Case number: T 3007/18
Application number: 13730418.4
IPC class: A01N 25/06
A61K 8/19
A61K 8/25
A61K 8/26
A61K 8/29
A61K 8/73
A01N 37/18
A61Q 17/02
A01P 17/00
Language of proceedings: EN
Distribution: D
Download and more information:
Decision text in EN (PDF, 238 KB)
Documentation of the appeal procedure can be found in the Register
Bibliographic information is available in: EN
Versions: Unpublished
Title of application: SPRAY FORMULATIONS WITH REDUCED CLOGGING/SEDIMENTATION CHARACTERISTICS
Applicant name: S.C. Johnson & Son, Inc.
Opponent name: Henkel AG & Co. KGaA
Board: 3.3.02
Headnote: -
Relevant legal provisions:
European Patent Convention Art 113(2)
Keywords: Basis of decision - revocation of the patent at request of the patent proprietor
Catchwords:

-

Cited decisions:
T 0073/84
T 0186/84
T 0463/90
T 0798/90
T 0014/99
T 1844/17
Citing decisions:
T 1936/18
T 0320/19

Summary of Facts and Submissions

I. The appeal by the opponent ("appellant") lies from the decision of the opposition division to reject the opposition against European patent No. 2 858 492 ("the patent").

II. In its statement of grounds of appeal, the appellant requested that the appealed decision be set aside and that the patent be revoked.

III. In its reply to the statement of grounds of appeal, the the patent proprietor requested that the appeal be dismissed. Alternatively, it requested that the patent be maintained on the basis of the claims of one of auxiliary requests I to III as filed before the opposition division on 21 August 2018.

IV. The board summoned the parties to oral proceedings to be held on 14 December 2021.

V. By letter dated 1 December 2021, the patent proprietor withdrew its request for oral proceedings. It also withdrew all requests on file and requested revocation of the patent.

VI. By communication dated 7 December 2021, the board cancelled the oral proceedings.

Reasons for the Decision

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

2. Since the patent proprietor withdrew all requests on file and requested revocation of the patent, there is no text of the patent submitted or agreed by the patent proprietor, on the basis of which the board can consider compliance with the requirements of the EPC.

3. It is established case law of the boards of appeal (see T 0073/84, OJ EPO 1985, page 241, T 0186/84, OJ EPO 1986, page 79, T 0798/90, T 0463/90, T 0014/99, T 1844/17) that, under these circumstances, the patent is to be revoked without further substantive examination. There are also no ancillary issues that would have to be dealt with by the board in the present case.

Order

For these reasons it is decided that:

1. The appealed decision is set aside.

2. The patent is revoked.

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