| European Case Law Identifier: | ECLI:EP:BA:2024:T116422.20240618 | ||||||||
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| Date of decision: | 18 June 2024 | ||||||||
| Case number: | T 1164/22 | ||||||||
| Application number: | 12727752.3 | ||||||||
| IPC class: | A61F 13/534 A61F 13/536 A61F 13/53 A61F 13/533 |
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| Language of proceedings: | EN | ||||||||
| Distribution: | D | ||||||||
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| Title of application: | DISPOSABLE DIAPERS | ||||||||
| Applicant name: | The Procter & Gamble Company | ||||||||
| Opponent name: | Kimberly-Clark Worldwide, Inc. | ||||||||
| Board: | 3.2.06 | ||||||||
| Headnote: | - | ||||||||
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| Keywords: | No approval of text for maintenance of the patent | ||||||||
| 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 to European patent No. 2 717 821.
II. The appellant (opponent) requested that the decision under appeal be set aside and the patent be revoked.
III. The respondent (patent proprietor) requested that the appeal be dismissed or, alternatively, that the patent be maintained on the basis of one of auxiliary requests 1-15 filed with the reply to the statement setting out the grounds of appeal.
IV. Oral proceedings were held before the Board on 18 June 2024, during which the respondent stated unequivocally that it no longer approved the text of the patent as granted, would not submit any new claim requests and withdrew all auxiliary requests.
Reasons for the Decision
1. Under Article 113(2) EPC, the European Patent Office shall examine, and decide upon, the European patent only in the text submitted to it, or agreed, by the proprietor of the patent. This principle has to be strictly observed also in opposition and opposition appeal proceedings.
2. Such an agreement cannot be deemed to exist if the patent proprietor, as in the present case, expressly states that it no longer approves the text on the basis of which the opposition division intended to maintain the patent and also withdraws all its requests on file.
3. 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. It is moreover clear that it wishes to prevent any text whatsoever of the patent from being maintained.
4. In the interests of legal certainty, the proceedings ought to be terminated as quickly as possible. The only possibility in such a case is for the Board to revoke the patent as envisaged in Article 101(2) EPC, but for other reasons (i.e. non-compliance with Article 113(2) EPC.)
5. In view of the above, the Board concludes that the patent must be revoked. This conclusion is also in line with case law developed by the Boards of Appeal in inter alia decisions T 73/84, T 186/84, T 655/01, T 1526/06 and T 1960/12.
Order
For these reasons it is decided that:
1. The decision under appeal is set aside.
2. The patent is revoked.
