3.1. The requirement of a text agreed by the applicant

In T 73/84 (OJ 1985, 241) the board held that the European patent was to be revoked if the patent proprietor stated in opposition or appeal proceedings that he no longer approved the text in which the patent was granted and would not be submitting an amended text (see also T 655/01, T 1526/06 and the cited case law). According to T 1244/08, such a statement immediately terminates the appeal proceedings, and it is not possible to retract it and continue the proceedings (see Chapter IV.C.5.2. "Requests for revocation during opposition and opposition appeal proceedings").

The board in T 706/00 pointed out that the EPO cannot depart from a request once made. It can only grant or deny the request; it cannot grant more, less or even something different. Unless a grantable text is submitted, at least auxiliarily, the request is rejected in full. In T 549/96, the board noted that an applicant had to unambiguously indicate, at the end of the proceedings, which text he proposed. Otherwise, the examining division would be unable to decide on the basis of which version it should proceed and the application would eventually have to be refused, since there would be no clear request at all. Thus, if an applicant failed to indicate his approval of the text of an allowable subsidiary request, e.g. by express disapproval or by maintaining one or more unallowable higher­preference requests, the examining division could refuse the application under Art. 97(1) EPC 1973 (see also T 976/97).

In T 237/96 the board held that Art. 113(2) EPC 1973 could not be interpreted in the sense that the examining division was bound to accept any amendment which the applicant might propose, only to ensure that there was a version approved by him. In circumstances in which, as in the case in question, amendments proposed by the applicant after the R. 51(4) EPC 1973 communication were with good reason not allowed by the examining division by virtue of R. 86(3) EPC 1973 and the applicant did not give its agreement to any other version of the application documents, the established practice of the EPO, sanctioned by consistent case law, was to refuse the application on the ground that there was no version approved by the applicant within the meaning of Art. 113(2) EPC 1973, on which a patent could be granted.

In the inter partes case T 917/95 a patent proprietor had submitted a new claim but no amended description or drawing. The descriptions and drawings relating to the previous claims were incompatible with the new claim. Because the proprietor failed to appear at the oral proceedings, no documents were available at the end of the oral proceedings on the basis of which the patent could have been maintained (see also T 725/00 and T 1174/01).

In T 255/05 the board held that according to Art. 113(2) EPC 1973, it was the applicant's responsibility to define the text on the basis of which it requested a patent to be granted. When the appellant, even after having been invited to do so by the board, did not clearly indicate the order in which its several requests were submitted and what the exact content of each of these requests was, there was no text submitted or agreed by the applicant within the meaning of Art. 113(2) EPC 1973 and no request which could be considered by the board.

In T 690/09 the board held that deciding to refuse an application on the ground that claims were not allowable contravened Art. 113(2) EPC 1973 if the applicant was no longer putting forward these claims; such decision amounted to a substantial procedural violation (see e.g. T 946/96 and T 647/93). If the examining division refused to consent to the latest submitted amended set of claims under R. 137(3) EPC, this would not automatically revive the previous set of claims that the examining division had consented to consider, unless the applicant had indicated, which in the case at issue he had not done, that he was relying on these as an auxiliary request.

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