European Round-Table on Patent Practice (EUROTAB)
|European Case Law Identifier:||ECLI:EP:BA:2011:T144908.20110309|
|Date of decision:||09 March 2011|
|Case number:||T 1449/08|
|IPC class:||H01M 8/10|
|Language of proceedings:||EN|
|Download and more information:||
|Title of application:||Purged anode, low effluent fuel cell|
|Applicant name:||International Fuel Cells, LLC|
|Opponent name:||Wimmer, Stephan
Ballard Power Systems Inc.
|Relevant legal provisions:||
|Keywords:||Revocation upon the proprietor's request|
Summary of Facts and Submissions
I. The present appeal lies from the interlocutory decision of the opposition division posted on 3 June 2008 maintaining the European patent No. 1 153 454 in amended form.
II. All parties lodged an appeal against that decision.
III. The appellant/proprietor requested the decision to be set aside and the patent to be upheld as granted, or alternatively the patent to be maintained on the basis of one of the sets of claims submitted as auxiliary requests 1 and 2, respectively, with the grounds of appeal.
IV. In a letter dated 17 February 2011, the appellant/ proprietor declared no longer approving the text in which the European patent was granted.
V. Following a communication from the board requesting clarification as regards the pending requests, the appellant/proprietor declared in a letter dated 3 March 2011 that it withdrew all pending requests and that it requested revocation of the patent.
Reasons for the Decision
1. Article 113(2) EPC states that the European Patent Office confines its considerations in proceedings to the text of the European patent application or the European patent "submitted to it, or agreed, by the applicant for or proprietor of the patent".
2. It follows from Article 113(2) EPC that a European patent cannot be maintained against the Proprietor's will. Thus, in view of the Respondent's request for revocation of its patent, the present European patent has to be revoked (cf. T 73/84; OJ EPO 1985, 241; T 201/96, item 2 of the reasons).
For these reasons it is decided that:
1. The decision under appeal is set aside.
2. The patent is revoked.