T 1765/22 (Nutritional composition/HERO) 10-09-2024
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A NUTRITIONAL COMPOSITION
Société des Produits Nestlé S.A.
FrieslandCampina Nederland B.V.
Arla Foods amba
N.V. Nutricia
I. Appeals were filed by opponents 1 to 4 (appellants 1 to 4) against the opposition division's decision finding that the European patent as amended according to auxiliary request 4, filed as auxiliary request 1A with the letter dated 20 January 2022, meets the requirements of the EPC.
II. With its reply to the statements setting out the grounds of the appellants' appeals the patent proprietor (respondent) requested that the appeals be rejected or, alternatively, that the patent be maintained on the basis of one of auxiliary requests 1B to 19D, filed during the opposition proceedings.
III. The appellants requested that the decision under appeal be set aside and that the patent be revoked in its entirety.
IV. With its letter dated 15 August 2024, the respondent declared that it no longer approved its agreement to the text of the patent as granted. Furthermore, it withdrew all its claim requests and submitted that it would not file any further request.
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, according to which the text of the patent is at the disposition of the proprietor, has to be strictly observed also in opposition and opposition-appeal proceedings.
2. As the patent proprietor (respondent) declared that it no longer approved the text of the patent as granted and withdrew all its requests, there is no text of the patent on which the board can base its consideration of the opponent's appeal.
3. If the proprietor of a European patent states in opposition or appeal proceedings that it no longer approves the text in which the patent was granted, and does not submit any amended text, the patent is to be revoked (Case Law of the Boards of Appeal, 10th edition 2022, IV.D.2, third paragraph and III.B.3.3, first paragraph).
4. Therefore, the patent must be revoked, without any preceding substantive examination.
For these reasons it is decided that:
Order
For these reasons it is decided that:
1. The decision under appeal is set aside.
2. The patent is revoked.