T 0120/22 (Inadmissibility of appeal/SIMPLY THICK) of 12.7.2022

European Case Law Identifier: ECLI:EP:BA:2022:T012022.20220712
Date of decision: 12 July 2022
Case number: T 0120/22
Application number: 10181835.9
IPC class: A23L 29/20
A23L 29/206
A23L 29/269
A23L 29/212
A23L 29/238
A23L 29/256
A23L 29/262
A23L 2/52
A61K 47/36
Language of proceedings: EN
Distribution: D
Download and more information:
Decision text in EN (PDF, 239 KB)
Documentation of the appeal procedure can be found in the Register
Bibliographic information is available in: EN
Versions: Unpublished
Title of application: Process for preparing concentrate thickener compositions
Applicant name: Simply Thick LLC
Opponent name: Fresenius Kabi Deutschland GmbH
Board: 3.3.09
Headnote: -
Relevant legal provisions:
European Patent Convention Art 108
European Patent Convention R 101(1)
Keywords: Admissibility of appeal (no)
Admissibility of appeal - missing statement of grounds
Oral proceedings - abandonment of request
Catchwords:

-

Cited decisions:
G 0002/19
T 1042/07
T 0234/10
T 2143/14
T 0118/19
T 2144/21
Citing decisions:
-

Summary of Facts and Submissions

I. The appeal of the patent proprietor (appellant) is directed against the decision of the Opposition Division dated 4 November 2021 revoking the patent.

II. The appellant filed a notice of appeal, paid the appeal fee, and requested oral proceedings if the Board was "minded to revoke the patent in any form, or to reject the appeal as inadmissible". They did not file any statement of grounds of appeal.

III. After the expiry of the prescribed period for filing the statement of grounds of appeal, the Board informed the appellant in a communication that no such statement had been filed and that it was therefore to be expected that the appeal would be rejected as inadmissible. The appellant replied by confirming that they did not intend to file any grounds of appeal. In a subsequent telephone call with the Board's registrar, the appellant further stated that they would not withdraw the appeal and that they would await the Board's decision.

Reasons for the Decision

1. Under Article 108, third sentence, EPC a statement setting out the grounds of appeal must be filed within four months of notification of the decision. Failing this, the appeal must be rejected as inadmissible under Rule 101(1) EPC.

2. As the appellant did not file any statement of grounds of appeal within the prescribed period, the appeal must be rejected as inadmissible.

3. According to settled case law, an appellant's failure to reply in substance to a board's communication indicating that the appeal is expected to be rejected as inadmissible due to a missing statement of grounds of appeal is considered to be equivalent to an abandonment of the request for oral proceedings (see T 1042/07, T 234/10, T 2143/14, T 118/19, T 2144/21). This is all the more so where, as in the present case, an appellant explicitly confirms after receipt of such a communication that they do not intend to file any grounds of appeal and will await the Board's decision.

3.1 Moreover, the nature of the right to request oral proceedings under Article 116(1), first sentence, EPC is not absolute and exceptions may be made where its application would make no sense in the specific circumstances of an individual case (G 2/19, Reasons B.II.2.).

3.2 The decision could therefore be taken in written proceedings.

Order

For these reasons it is decided that:

The appeal is rejected as inadmissible.

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