| European Case Law Identifier: | ECLI:EP:BA:2023:T310719.20231113 | ||||||||
|---|---|---|---|---|---|---|---|---|---|
| Date of decision: | 13 November 2023 | ||||||||
| Case number: | T 3107/19 | ||||||||
| Application number: | 09160311.8 | ||||||||
| IPC class: | C09K 5/04 | ||||||||
| Language of proceedings: | EN | ||||||||
| Distribution: | D | ||||||||
| Download and more information: |
|
||||||||
| Title of application: | COMPOSITIONS CONTAINING FLUORINE SUBSTITUTED OLEFINS | ||||||||
| Applicant name: | Honeywell International Inc. | ||||||||
| Opponent name: | ARKEMA FRANCE Mexichem UK Limited |
||||||||
| Board: | 3.3.10 | ||||||||
| Headnote: | - | ||||||||
| Relevant legal provisions: |
|
||||||||
| Keywords: | Appellant no longer approves the text of the patent | ||||||||
| Catchwords: |
- |
||||||||
| Cited decisions: |
|
||||||||
| Citing decisions: |
|
||||||||
Summary of Facts and Submissions
I. Both the patent proprietor and the opponent 1 appealed the opposition division's decision on the maintenance of the patent in the form of the third auxiliary request before it.
II. An intervention was filed and subsequently withdrawn.
III. The parties were summoned to oral proceedings.
IV. With a letter dated 10 November 2023 the appellant-patent proprietor stated that it no longer approved of the text upon which the above patent was granted and unconditionally withdrew the patent with immediate effect. It also withdrew its request for oral proceedings.
V. The oral proceedings were cancelled.
Reasons for the Decision
1. The appeals are admissible.
2. During the present appeal proceedings, the appellant-patent proprietor withdrew its approval of the text of the patent as granted and unconditionally withdrew the patent.
3. Under Article 113(2) EPC, the European Patent Office must consider a European patent only in the text submitted to it, or agreed by the proprietor of the patent. There is, however, no text of the patent on the basis of which the board can consider this appeal.
4. Since the text of the patent is at the disposition of the patent proprietor, a patent cannot be maintained against the proprietor's will.
If a patent proprietor withdraws its approval of the text of the patent as granted and of the text in which the patent was maintained and withdraws every other request on file, and requests revocation of the patent in suit it wishes to prevent any text whatever of the patent from being maintained.
5. In the case underlying T 73/84 (Headnote and Reasons), the board decided that if the proprietor of a European patent stated in opposition or appeal proceedings that it no longer approved the text in which the patent was granted and did not submit any amended text, the patent was to be revoked. This approach was confirmed, among others, by decisions T 186/84, T 655/01, T 1526/06 and T 2405/12.
6. In the circumstances of the present case, the board sees no reasons to deviate from the principles set out in the above-mentioned decisions. The patent must therefore be revoked without going into any substantive issue.
Order
For these reasons it is decided that:
The decision under appeal is set aside.
The patent is revoked.
