| European Case Law Identifier: | ECLI:EP:BA:2018:T142114.20180308 | ||||||||
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| Date of decision: | 08 March 2018 | ||||||||
| Case number: | T 1421/14 | ||||||||
| Application number: | 06774694.1 | ||||||||
| IPC class: | A61F 13/15 | ||||||||
| Language of proceedings: | EN | ||||||||
| Distribution: | D | ||||||||
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| Title of application: | FLEXIBLE ABSORBENT ARTICLE WITH IMPROVED BODY FIT | ||||||||
| Applicant name: | The Procter & Gamble Company | ||||||||
| Opponent name: | Kimberly-Clark Worldwide, Inc. | ||||||||
| Board: | 3.2.06 | ||||||||
| Headnote: | - | ||||||||
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| Keywords: | Basis of decision - text or agreement to text withdrawn by patent proprietor Basis of decision - patent revoked |
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| Catchwords: |
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Summary of Facts and Submissions
I. The appeal was filed by the appellant (opponent) against the decision of the opposition division, in which it rejected the opposition against European patent No. 1 912 603.
II. The appellant requested that the decision under appeal be set aside and the patent be revoked.
III. In its reply the respondent (patent proprietor) requested that the decision be upheld (i.e. dismissal of the appeal). It also filed first to ninth auxiliary requests. Auxiliarily oral proceedings were requested.
IV. In a further submission, the appellant supplied observations on certain of the auxiliary requests.
V. The Board issued a summons to oral proceedings and subsequently a communication setting out its preliminary opinion.
VI. In its letter dated 19 February 2018, the respondent (proprietor) withdrew all its requests as well as its approval of the text of the patent as granted. It further stated that it understood the patent would therefore be revoked and withdrew its request for oral proceedings.
VII. The oral proceedings were duly cancelled.
Reasons for the Decision
1. Pursuant to Article 113(2) EPC the EPO shall examine, and decide upon, the European patent application or the European patent only in the text submitted to it, or agreed, by the applicant or the proprietor of the patent.
2. Such an agreement cannot be deemed to exist if the proprietor - as in the present case - expressly states that it no longer approves the text of the patent as granted and withdraws all pending requests.
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 Board of Appeal of the European Patent Office, 8th Edition, 2016, IV. C.5.2).
Order
For these reasons it is decided that:
1. The decision under appeal is set aside.
2. The patent is revoked.
