| European Case Law Identifier: | ECLI:EP:BA:2011:T041009.20110414 | ||||||||
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| Date of decision: | 14 April 2011 | ||||||||
| Case number: | T 0410/09 | ||||||||
| Application number: | 01985366.2 | ||||||||
| IPC class: | A23D 7/00 | ||||||||
| Language of proceedings: | EN | ||||||||
| Distribution: | D | ||||||||
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| Title of application: | Food composition suitable for shallow frying comprising sunflower lecithin | ||||||||
| Applicant name: | Unilever N.V., et al | ||||||||
| Opponent name: | CARGILL, INCORPORATED Former Opponent 02: POTTS, KERR & CO. |
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| Board: | 3.3.09 | ||||||||
| Headnote: | - | ||||||||
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| Keywords: | No text agreed by the the patentee - revocation of the patent | ||||||||
| Catchwords: |
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Summary of Facts and Submissions
I. In its interlocutory decision posted on 22 December 2008, the opposition division decided that the European patent No. 1 343 385 could be maintained in amended form according to Article 101(3) EPC.
II. Opponent 01, Cargill, Incorporated, lodged an appeal against this decision on 16 February 2009 and paid the appeal fee on the same day. The statement of grounds of appeal was filed on 22 April 2009.
Opponent 02, Potts, Kerr & Co, withdrew its opposition by letter dated 8 March 2011.
III. In a letter dated 6 April 2011 the joint patent proprietors, Unilever N.V. and Unilever PLC, informed the board that they will not be represented at the oral proceedings scheduled to take place on 6 May 2011 and stated:
"The request for oral proceedings is withdrawn and the text is no longer approved."
Reasons for the Decision
1. The appeal is admissible.
2. Article 113(2) EPC requires that the EPO may decide upon the European patent only in the text submitted to it, or 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 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 (see, for instance T 601/98).
ORDER
For these reasons it is decided that:
1. The decision under appeal is set aside.
2. The patent is revoked.
