| European Case Law Identifier: | ECLI:EP:BA:2025:T157523.20250514 | ||||||||
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| Date of decision: | 14 May 2025 | ||||||||
| Case number: | T 1575/23 | ||||||||
| Application number: | 17194255.0 | ||||||||
| IPC class: | A61F 13/532 A61F 13/537 |
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| Language of proceedings: | EN | ||||||||
| Distribution: | D | ||||||||
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| Title of application: | ABSORBENT ARTICLE AND ABSORBENT CORE FORMING CHANNELS WHEN WET | ||||||||
| Applicant name: | The Procter & Gamble Company | ||||||||
| Opponent name: | Ontex BV Essity Hygiene and Health Aktiebolag Kimberly-Clark Worldwide, Inc. |
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| Board: | 3.2.06 | ||||||||
| Headnote: | - | ||||||||
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| Keywords: | Withdrawal of approval of any text for maintenance of the patent | ||||||||
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Summary of Facts and Submissions
I. This decision concerns the appeals filed by both opponent II and opponent III against the decision of the opposition division to reject the oppositions to European patent No. EP-B-3 284 450.
II. The appellants each requested that the decision under appeal be set aside and the patent be revoked.
III. In its letter of response, the respondent (patent proprietor) requested that the appeal be dismissed or, in the alternative, that the patent be maintained according to one of auxiliary requests 1 to 9.
IV. In preparation for oral proceedings, the Board issued a communication under Article 15(1) RPBA containing its provisional opinion that none of the requests on file were allowable.
V. With its submission of 9 May 2025 the respondent unconditionally withdrew its main request, all of its auxiliary requests and its approval for the granted version of the patent, with the intention that the patent should be revoked.
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. Revocation at the request of the patent proprietor in the framework of opposition or opposition appeal proceedings is not possible, as it is expressly excluded by Article 105a(2) EPC. At the same time, the proceedings ought to be terminated as quickly as possible in the interests of legal certainty. The only possibility in such a case is for the Board to revoke the patent as envisaged in Article 101 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.
