| European Case Law Identifier: | ECLI:EP:BA:2023:T261719.20230601 | ||||||||
|---|---|---|---|---|---|---|---|---|---|
| Date of decision: | 01 June 2023 | ||||||||
| Case number: | T 2617/19 | ||||||||
| Application number: | 08864664.1 | ||||||||
| IPC class: | A61K 31/7052 A61K 31/7072 A61K 35/60 A61K 47/36 A61K 47/38 A61P 25/28 A61K 9/00 A61K 38/02 A23L 29/262 A23L 29/269 A23L 33/115 A23L 33/13 A23L 33/17 A23L 33/00 A61K 33/06 A61K 47/42 A61K 47/44 |
||||||||
| Language of proceedings: | EN | ||||||||
| Distribution: | D | ||||||||
| Download and more information: |
|
||||||||
| Title of application: | A PALATABLE NUTRITIONAL COMPOSITION COMPRISING A NUCLEOTIDE AND/OR A NUCLEOSIDE AND A TASTE MASKING AGENT | ||||||||
| Applicant name: | N.V. Nutricia | ||||||||
| Opponent name: | Société des Produits Nestlé S.A. | ||||||||
| Board: | 3.3.07 | ||||||||
| Headnote: | - | ||||||||
| Relevant legal provisions: |
|
||||||||
| Keywords: | Basis of decision - text or agreement to text withdrawn by patent proprietor | ||||||||
| Catchwords: |
- |
||||||||
| Cited decisions: |
|
||||||||
| Citing decisions: |
|
||||||||
Summary of Facts and Submissions
I. The decision under appeal is the opposition division's decision rejecting the opposition filed against European patent No. 2 244 591.
II. The opponent (appellant) filed an appeal against the decision.
III. The board scheduled oral proceedings in line with the parties' requests.
IV. Oral proceedings were held before the board on 1 June 2023. During the oral proceedings, the patent proprietor (respondent) declared that they no longer approved the text of the patent and withdrew all requests on file.
Reasons for the Decision
1. Under Article 113(2) EPC, the European Patent Office shall decide upon the European patent only in the text submitted to it, or agreed, by its proprietor.
2. By disapproving the text of the granted patent and withdrawing all amended text versions submitted to the EPO, the patent proprietor withdrew their approval of any text for maintenance of the patent. Therefore, there is no approved text of the patent on the basis of which the board can decide on the appeal.
3. In these circumstances, it is established case law that the patent must be revoked without further substantive examination as to patentability (see decision T 73/84, OJ EPO 1985, 241 and Case Law of the Boards of Appeal of the European Patent Office, 10th edition 2022, section IV.D.2). The board has no reason to deviate from this case law.
Order
For these reasons it is decided that:
1. The decision under appeal is set aside.
2. The patent is revoked.
