| European Case Law Identifier: | ECLI:EP:BA:2019:T188215.20190221 | ||||||||
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| Date of decision: | 21 February 2019 | ||||||||
| Case number: | T 1882/15 | ||||||||
| Application number: | 10184375.3 | ||||||||
| IPC class: | A01C 1/00 A01H 1/02 A01C 1/02 A01H 4/00 C12Q 1/68 G01N 1/04 A01H 1/04 |
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| Language of proceedings: | EN | ||||||||
| Distribution: | D | ||||||||
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| Title of application: | Automated seed sampler and methods of sampling and testing seeds | ||||||||
| Applicant name: | Monsanto Technology LLC | ||||||||
| Opponent name: | Syngenta Crop Protection AG | ||||||||
| Board: | 3.2.04 | ||||||||
| 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| Keywords: | Basis of decision - text or agreement to text withdrawn by patent proprietor Basis of decision - patent revoked |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 appellant-opponent lodged an appeal, received 23 September 2015, against the interlocutory decision of the Opposition Division posted on 13 July 2015 concerning maintenance of the European Patent No. 2279657 in amended form. They paid the appeal fees at the same time. The appellant-opponent's grounds of appeal were received on 23 November 2015.
The proprietor also lodged an appeal against the above decision. The appeal was subsequently withdrawn with letter received 23 November 2015.
II. Opposition was filed against the patent as a whole and based on all opposition grounds. The division held that the patent as amended according to an auxiliary request met all the requirements of the EPC.
III. Oral proceedings before the Board were duly held on 21 February 2019 in the absence of the appellant-opponent who had been duly summoned and who had informed the Board in a letter dated 3 January 2019 that they would not attend the oral proceedings.
During the course of the oral proceedings, the respondent-proprietor declared that they no longer approved the text in which the patent had been granted as they did not wish the Board to decide on any of their requests.
IV. The appellant-opponent requests that the decision under appeal be set aside and the patent be revoked in its entirety.
Reasons for the Decision
1. The appeal is admissible.
2. Pursuant to Article 113(2) EPC, the EPO shall examine, and decide upon, the European patent only in the text submitted to it, or agreed, by the proprietor of the patent.
3. The Board notes that by withdrawing their approval of the text of the granted patent with the express wish for the Board not to decide on their requests, the respondent-proprietor implicitly withdrew all their then pending claim requests.
Furthermore, an agreement according to Article 113(2) EPC cannot be deemed to exist where - as in the present case - the proprietor expressly states that it no longer approves the text of the patent as granted and withdraws all pending requests.
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 (Case Law of the Boards 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.
