| European Case Law Identifier: | ECLI:EP:BA:2018:T133116.20180326 | ||||||||
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| Date of decision: | 26 March 2018 | ||||||||
| Case number: | T 1331/16 | ||||||||
| Application number: | 07715869.9 | ||||||||
| IPC class: | A23G 3/34 A23D 7/005 A23L 1/09 A23L 1/0524 A21D 13/00 |
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| Language of proceedings: | EN | ||||||||
| Distribution: | D | ||||||||
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| Title of application: | COLD-GELLING THIXOTROPIC GLAZE COMPOSITION | ||||||||
| Applicant name: | CSM Nederland B.V. | ||||||||
| Opponent name: | PURATOS N.V. | ||||||||
| Board: | 3.3.09 | ||||||||
| Headnote: | - | ||||||||
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| Keywords: | Basis of decision - proprietor(respondent) no longer approves the text and does not submit an amended text Basis of decision - patent revoked |
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Summary of Facts and Submissions
I. This decision concerns the appeal filed by the opponent against the decision of the opposition division rejecting the opposition filed against European patent No. 1 981 351.
II. The appellant/opponent requested that the decision of the opposition division be set aside and that the patent be revoked in its entirety.
III. On 20 December 2016 the respondent/patent proprietor filed observations on the appeal including five auxiliary requests, and requested that the appeal be dismissed, alternatively that the patent be maintained on the basis of one of the auxiliary requests.
IV. With letter of 20 March 2018 the respondent/patent proprietor declared:
"Please be informed that proprietor (CSM Nederland B.V.) no longer approves the text in which the patent was granted and does not want to submit an amended text. Proprietor realizes that this will lead to revocation of the patent".
Reasons for the Decision
1. Article 113(2) EPC requires that the European Patent Office shall decide upon the European patent only in the text submitted to it, or agreed, by the proprietor of the patent.
2. Agreement cannot be deemed to be given if the proprietor expressly states that it no longer approves the text upon which the patent was granted and that it will not be submitting an amended text. Since the text of the patent is at the disposition of the patent proprietor, a patent cannot be maintained against the patent proprietor's will.
3. In the present situation, where there is no text of the patent on which basis the Board can consider the appeal of the appellant/opponent, the only possibility available to the Board is to revoke the patent as envisaged in Articles 111(1) together with 101 EPC. In this context reference is made to T 2405/12 and the decisions cited therein.
Order
For these reasons it is decided that:
1. The decision under appeal is set aside.
2. The patent is revoked.
