| European Case Law Identifier: | ECLI:EP:BA:2025:T122923.20250430 | ||||||||
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| Date of decision: | 30 April 2025 | ||||||||
| Case number: | T 1229/23 | ||||||||
| Application number: | 16784254.1 | ||||||||
| IPC class: | B01D 53/94 B01J 35/00 B01J 23/644 F01N 3/10 B01J 23/656 B01J 23/78 B01J 29/80 B01J 29/83 B01J 35/04 B01J 37/00 B01J 37/02 B01J 29/78 B01J 37/10 F01N 3/08 |
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| Language of proceedings: | EN | ||||||||
| Distribution: | D | ||||||||
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| Title of application: | OXIDATION CATALYST FOR A DIESEL ENGINE EXHAUST | ||||||||
| Applicant name: | Johnson Matthey Public Limited Company | ||||||||
| Opponent name: | Umicore AG & Co. KG | ||||||||
| Board: | 3.3.02 | ||||||||
| 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| Keywords: | Basis of decision - text or agreement to text withdrawn by patent proprietor Basis of decision - patent revoked |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 by the opponent ("appellant") is against the opposition division's interlocutory decision that European patent No. 3 334 518 in amended form according to the set of claims of the main request filed on 14 March 2023 and the invention to which it relates meet the requirements of the EPC.
II. In the written appeal proceedings, the patent proprietor ("respondent") requested that the patent be maintained in amended form on the basis of the set of claims of the new main request filed with the letter dated 28 February 2025 or, if the new main request is not admitted, on the basis of the set of claims of auxiliary request 6 filed with the reply to the grounds of appeal.
III. The board summoned the parties to oral proceedings as requested and subsequently informed them of its preliminary opinion in a communication pursuant to Article 15(1) RPBA.
IV. With a letter dated 17 April 2025, the appellant announced that it would not be attending the oral proceedings.
V. Oral proceedings before the board took place on 30 April 2025 in the absence of the appellant.
VI. During the oral proceedings, the respondent withdrew its consent and agreement under Article 113(2) EPC to the text of the patent as granted and also withdrew all requests on file.
Reasons for the Decision
1. According to the principle of party disposition established by Article 113(2) EPC, the European Patent Office will examine, and decide upon, the European patent only in the text submitted to it, or agreed, by the patent proprietor.
2. In view of the respondent's statement during the oral proceedings (point VI. above), there is no approved text on the basis of which the board could consider the appeal and examine whether a ground for opposition prejudices the maintenance of the patent. It is also no longer possible to take a decision as to substance because the absence of an approved text precludes any substantive examination of the alleged impediments to patentability (T 1627/21, point 2 of the Reasons and decisions cited therein).
3. According to the case law of the boards of appeal, in these circumstances, the proceedings are to be terminated by a decision ordering revocation of the patent under Article 101 EPC without assessing issues relating to patentability since the respondent no longer challenges the request for revocation of the opposed patent and the patent cannot be maintained against the respondent's (proprietor's) will (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, III.B.3.3).
Order
For these reasons it is decided that:
1. The decision under appeal is set aside.
2. The patent is revoked.
