T 0386/04 vom 09.01.2007

An appellant-proprietor, whose patent has been revoked, is entitled to seek maintenance of the patent as granted even though its main request before the opposition division had only been the maintenance of the patent in more limited form. The exception to this is where to allow the proprietor to revert to the amended claims would amount to an abuse of procedure. This long-standing principle is not contradicted by decisions T 528/93 or T 840/93, which are concerned with new claims raising new issues, and is not contrary to the statement by the Enlarged Board of Appeal in decision G 9/91 concerning the purpose of an appeal. Observed: In this context, there is no procedural logic in distinguishing between cases in which the patent has been revoked and cases in which the patent has been maintained.