| European Case Law Identifier: | ECLI:EP:BA:2019:T054017.20190917 | ||||||||
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| Date of decision: | 17 September 2019 | ||||||||
| Case number: | T 0540/17 | ||||||||
| Application number: | 08763224.6 | ||||||||
| IPC class: | C08J 5/18 | ||||||||
| Language of proceedings: | EN | ||||||||
| Distribution: | D | ||||||||
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| Title of application: | ABSORBENT ARTICLES COMPRISING LOW BASIS WEIGHT FILMS | ||||||||
| Applicant name: | The Procter & Gamble Company | ||||||||
| Opponent name: | Essity Hygiene and Health Aktiebolag | ||||||||
| Board: | 3.3.09 | ||||||||
| 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| Keywords: | Basis of decision - text or agreement to text withdrawn by patent proprietor Basis of decision - patent revoked |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. This decision concerns the appeal filed by the opponent against the decision of the opposition division to reject the opposition against European patent No. 2 150 574.
II. The opponent (appellant) requested that the decision under appeal be set aside and the patent be revoked and that the appeal fee be reimbursed.
III. The patent proprietor (respondent) requested that the appeal be dismissed (maintenance of the patent as grated) or that the patent be maintained on the basis of the auxiliary request before the opposition division.
IV. The parties were summoned to oral proceedings. The board issued a communication setting out its preliminary and non-binding opinion.
V. By letter dated 3 September 2019, the respondent stated that "the Proprietors no longer approve the text of the subject patent both in its current form and as amended by the single auxiliary request on file" and that the proprietors would not be attending the scheduled oral proceedings.
VI. By letter dated 11 September 2019, the appellant stated that it no longer maintained the request for reimbursement of the appeal fee and that it would not be represented at the oral proceedings.
VII. In view of the parties' latest submissions, the board cancelled the oral proceedings.
Reasons for the Decision
1. Article 113(2) EPC stipulates that the European Patent Office shall consider and 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, without submitting an amended text, expressly states that it no longer approves the text of the patent as granted or as amended.
3. 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 Article 101 EPC. In this context, reference is made to the Case Law of the Boards of Appeal of the EPO, in particular 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.
