| European Case Law Identifier: | ECLI:EP:BA:2022:T092921.20220201 | ||||||||
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| Date of decision: | 01 February 2022 | ||||||||
| Case number: | T 0929/21 | ||||||||
| Application number: | 08172709.1 | ||||||||
| IPC class: | B23K 35/28 B23K 35/14 B23K 1/19 B32B 15/01 C22C 21/00 C22C 21/02 C22C 21/10 F28F 21/08 B23K 103/10 |
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| Language of proceedings: | EN | ||||||||
| Distribution: | D | ||||||||
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| Title of application: | Brazing sheet of aluminium alloy | ||||||||
| Applicant name: | Kabushiki Kaisha Kobe Seiko Sho (Kobe Steel, Ltd.) | ||||||||
| Opponent name: | Gränges AB Speira GmbH |
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| Board: | 3.2.01 | ||||||||
| 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| Keywords: | Basis of decision - text or agreement to text withdrawn by patent proprietor Basis of decision - patent revoked |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 appeal filed by the appellant (opponent 2) is directed against the interlocutory decision of the opposition division to reject the oppositions filed against the European patent No. 2 075 083.
II. The appellant (opponent 2) requested to set aside the decision of the opposition division and to revoke the patent in its entirety, as an auxiliary measure to appoint oral proceedings pursuant to Article 116 EPC.
The patent proprietor (respondent) did not reply to the statement of the grounds of appeal and, with a letter dated 30 November 2021, withdrew their approval to the text in which the patent was granted (and upheld by the opposition division) together with all the other requests on file, and stated that they did not intend to submit any other text for the maintenance of the patent.
Reasons for the Decision
1. According to Article 113(2) EPC, 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. In the present case the respondent (patent proprietor) explicitly disapproved all texts for the patent, withdrew all requests on file and declared that they will not be submitting an amended text. Therefore, there is no text of the patent on the basis of which the Board can consider the appeal.
1.1 From the letter dated 30 November 2021 the Board infers that the respondent (patent proprietor) wishes to prevent any text whatever of the patent from being maintained.
1.2 Since the text of the patent is at the disposition of the patent proprietor and a patent cannot be maintained against the proprietor's will, the contested patent can only be revoked without going into the substantive issues, thereby confirming the established jurisprudence of the Boards of Appeal (see e.g. T0073/84, T 0534/01, T0054/03 or T0013/05).
Order
For these reasons it is decided that:
1. The decision under appeal is set aside.
2. The European patent is revoked.
