14-15 November 2018
|European Case Law Identifier:||ECLI:EP:BA:2017:T182815.20170118|
|Date of decision:||18 January 2017|
|Case number:||T 1828/15|
|IPC class:||G06F 19/00
|Language of proceedings:||EN|
|Download and more information:||
|Title of application:||Medical apparatus with improved user interface|
|Applicant name:||Gambro Lundia AB|
|Opponent name:||B. Braun Avitum AG|
|Relevant legal provisions:||
|Keywords:||Revocation of the patent upon proprietor's request|
Summary of Facts and Submissions
I. The appeal of the opponent lies from the opposition division's decision to reject the opposition filed against the present European patent as granted, having regard to the invoked opposition grounds of lack of patentability (Article 100(a) EPC in conjunction with Articles 52(2)(c), 54 and 56 EPC), insufficiency of disclosure (Articles 100(b) and 83 EPC) and added subject-matter (Articles 100(c) and 123(2) EPC).
II. With its statement setting out the grounds of appeal, the appellant requested that the decision under appeal be set aside and the patent be revoked in its entirety. In addition, oral proceedings were requested as an auxiliary measure.
III. In an annex to the summons to oral proceedings pursuant to Article 15(1) RPBA, the board expressed its preliminary view that the subject-matter of claim 1 as granted did not involve an inventive step (Article 56 EPC 1973) since the features distinguishing it from the cited prior art represented a mere mathematical method within the meaning of Article 52(2)(a) EPC.
IV. In its letter of reply of 11 January 2017, the respondent (patent proprietor) indicated the following:
"1. We withdraw all our previous requests,
including our request for Oral Proceedings;
2. We request that the opposed patent be
revoked without going into substantive
issues (see T186/84, OJ EPO 1986, 79,
reasons point 5) as the Proprietor no longer
approves the text as granted and does not
intend to submit any other text for the
maintenance of the patent (see T73/84 OJ EPO,
V. Oral proceedings scheduled for 16 February 2017 were then cancelled.
Reasons for the Decision
1. Respondent's request for revocation of the patent
1.1 Pursuant to Article 113(2) EPC 1973, the EPO shall examine and decide upon a European patent only in the text submitted to it or agreed by the patent proprietor.
1.2 However, in the present case, the proprietor (respondent) expressly stated that it no longer approved the text of the patent as granted and did not submit any other text for the maintenance of the opposed patent, and withdrew all pending requests including its request for oral proceedings (cf. point IV above). Consequently, there is no text of the opposed patent submitted or agreed by the proprietor within the meaning of Article 113(2) EPC 1973 on the basis of which the board could consider the appeal.
1.3 It is established case law that in these circumstances, the proceedings are to be terminated by a decision ordering revocation of the patent, without going into the substantive issues (see e.g. T 73/84, OJ EPO 1985, 241, Headnote; T 186/84, OJ EPO 1986, 79, Headnote; T 307/13 of 16 July 2013, Reasons 2 to 4). The board has no reason in the present case to deviate from that consistent approach of the Boards of Appeal.
2. Appellant's request for oral proceedings
Given that the board accedes to the appellant's main request to set aside the decision under appeal and to revoke the patent in its entirety (cf. point II above), there has been no need to appoint oral proceedings which were only requested on an auxiliary basis (cf. statement setting out the grounds of appeal, section 1).
For these reasons it is decided that:
1. The decision under appeal is set aside.
2. The patent is revoked.