T 0441/11 15-11-2013
Pretreatment method for coating
I. The proprietor (appellant) has filed an appeal against the decision of the opposition division maintaining European patent No. 1 433 877 as amended.
The appellant requested that the decision under appeal be set aside and the patent be maintained as granted or alternatively on the basis of auxiliary request 1 or 2 filed with the statement setting out the grounds of appeal.
It furthermore filed an auxiliary request for oral proceedings.
The respondent (opponent) has, besides a referral to a change concerning its representation, not replied in substance to the appeal.
II. The Board summoned for oral proceedings before the Board, to be held on 3 December 2013. In the annex to the summons the Board gave its provisional opinion concerning the issues it considered to be relevant.
III. In response to the summons the appellant declared in its letter dated 25 June 2013 that it no longer agrees to the maintenance of the patent as granted and that it does not intend to file an amended version of the claims.
It further requested that the patent be revoked in its entirety, with effect for all designated states.
IV. In view of this request the oral proceedings were cancelled.
1. The appellant's request for revocation of the patent indicates that it withdraws its agreement to the text of the patent as granted as well as to the text in which the patent was maintained in amended form according to the decision under appeal and that it does not intend to submit any other text for the maintenance of the patent.
2. Article 113(2) EPC 1973, however, stipulates that the EPO may decide upon a European patent only in the text submitted to it, or agreed by the patent proprietor. This substantive requirement for maintaining the contested patent is not fulfilled in the present case and therefore the proceedings are to be terminated by a decision ordering revocation, without going into the substantive issues (see e.g. decision T 73/84, OJ EPO 1985, 241).
For these reasons it is decided that:
1. The decision under appeal is set aside.
2. The patent is revoked.