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T 0401/99 () of 29.4.2005

European Case Law Identifier: ECLI:EP:BA:2005:T040199.20050429
Date of decision: 29 April 2005
Case number: T 0401/99
Application number: 92923542.2
IPC class: A61K 7/06
Language of proceedings: EN
Distribution: D
Download and more information:
Decision text in EN (PDF, 52.350K)
Documentation of the appeal procedure can be found in the Register
Bibliographic information is available in: EN
Versions: Unpublished
Title of application: Shampoo compositions with silicone, cationic polymer, and oily liquid conditioning agents
Opponent name: Henkel Kommanditgesellschaft auf Aktien
KPSS-Kao Professional Salon Services GmbH
Board: 3.3.07
Headnote: -
Relevant legal provisions:
European Patent Convention 1973 Art 113(2)
Keywords: Missing approval of the text of the patent - revocation


Cited decisions:
Citing decisions:

Summary of Facts and Submissions

I. The appeal contests the decision of the Opposition Division of the European Patent Office posted on 22 March 1999 rejecting the oppositions filed against European patent No. 0 610 407.

II. On 17 April 1999 the opponent 01 (appellant) lodged an appeal against the decision and paid the corresponding fee on the same day. A statement of grounds was filed on 23 June 1999.

III. In reply to the summons to oral proceedings and the communication of the Board of 21 April 2005, the respondent's (proprietor's) representative stated by letter dated 22 April 2005, that the proprietor had no further interest in the proceedings and accordingly no longer approved of the text of the granted patent.

Reasons for the Decision

1. The appeal complies with Articles 106 to 108 and Rule 64 EPC and is therefore admissible.

2. In accordance with Article 113(2) EPC, the EPO can maintain the patent only in the text agreed by the proprietor of the patent. Agreement cannot be held to be given if the proprietor, without submitting an amended text, expressly states that he no longer approves of the text of the patent as granted or previously amended. In such a situation 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 (Case Law of the Boards of Appeal, 4th edition 2001, VII.D.11.3, page 540 of the English version).


For these reasons it is decided that:

1. The decision of the Opposition Division dated 22 March 1999 is set aside.

2. European patent No. 0 610 407 is revoked.

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