| European Case Law Identifier: | ECLI:EP:BA:2018:T001015.20180614 | ||||||||
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| Date of decision: | 14 June 2018 | ||||||||
| Case number: | T 0010/15 | ||||||||
| Application number: | 08719678.8 | ||||||||
| IPC class: | A61F 13/15 | ||||||||
| Language of proceedings: | EN | ||||||||
| Distribution: | D | ||||||||
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| Title of application: | ARRAY OF GENDER-SPECIFIC, DISPOSABLE, ADULT-INCONTINENCE ARTICLES | ||||||||
| Applicant name: | KIMBERLY-CLARK WORLDWIDE, INC. | ||||||||
| Opponent name: | Paul Hartmann AG | ||||||||
| 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| Keywords: | Basis of decision - text or agreement to text withdrawn by patent proprietor Basis of decision - patent revoked |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. In its interlocutory decision, the opposition division found that European Patent No. 2 144 583 as amended met the requirements of the European Patent Convention (EPC).
II. The appellant (opponent) filed an appeal against this decision. The appellant requested that the decision under appeal be set aside and the patent be revoked.
III. In reply, the respondent (patent proprietor) requested that the appeal be dismissed. It additionally submitted first to third auxiliary requests.
IV. The Board issued a summons to oral proceedings and subsequently a communication in which it indicated its preliminary opinion.
V. With letter dated 7 June 2018 the respondent withdrew all pending requests as well as its approval of the granted text in any form, and requested that the patent be revoked.
VI. The oral proceedings were cancelled.
Reasons for the Decision
1. Pursuant to Article 113(2) EPC the European Patent Office 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. This principle has to be strictly observed also in opposition and opposition-appeal proceedings.
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. In such circumstances there is no text of the patent on the basis of which the Board can consider the appeal. Therefore, 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, 8**(th) 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.
