| European Case Law Identifier: | ECLI:EP:BA:2024:T081523.20240220 | ||||||||
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| Date of decision: | 20 February 2024 | ||||||||
| Case number: | T 0815/23 | ||||||||
| Application number: | 18179282.1 | ||||||||
| IPC class: | A23K 20/142 A23K 20/22 A23K 20/24 A23K 50/80 |
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| Language of proceedings: | EN | ||||||||
| Distribution: | D | ||||||||
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| Title of application: | A METHOD FOR SMOLTIFICATION IN SALMONIDAE | ||||||||
| Applicant name: | STIM. AS | ||||||||
| Opponent name: | Cargill, Incorporated | ||||||||
| 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| Keywords: | Basis of decision - text or agreement to text withdrawn by patent proprietor Basis of decision - patent revoked Basis of decision - revocation of the patent at request of the patent proprietor |
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Summary of Facts and Submissions
I. The appeals were filed by the patent proprietor and the opponent (both appellants) against the interlocutory decision of the opposition division finding that, on the basis of the second auxiliary request (then on file), the patent in suit ("the patent") met the requirements of the EPC.
II. With its letter dated 26 January 2024, the patent proprietor requested that the patent be revoked.
III. The opponent requested in its notice of appeal that the decision under appeal be set aside and that the patent be revoked.
Reasons for the Decision
1. The board understands the patent proprietor's request to revoke the patent made during the appeal proceedings as a statement that it no longer approves the text of the patent in any form and that no amended text will be submitted (see e.g. T 459/88, Reasons 4, and T 1268/21, Facts and Submissions IV and Reasons 3).
2. Under Article 113(2) EPC, 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. This principle has to be strictly observed also in opposition and opposition appeal proceedings. As the patent proprietor withdrew its agreement to the text of the patent in any form, there is no text of the patent on which the board can base its consideration of the opponent's appeal.
3. In such a situation, the patent is to be revoked without any preceding substantive examination (Case Law of the Boards of Appeal of the EPO, 10th edition 2022, IV.D.2, in particular third and fifth paragraphs, and III.B.3.3, first paragraph).
Order
For these reasons it is decided that:
1. The decision under appeal is set aside.
2. The patent is revoked.
