T 1066/14 14-11-2019
APPARATUS FOR RENAL NEUROMODULATION
Basis of decision - agreement to text withdrawn by patent proprietor
Basis of decision - all requests withdrawn by patent proprietor
Basis of decision - patent revoked
I. In its interlocutory decision, the Opposition Division decided that European patent 1 802 370, as amended in accordance with the main request on file at that time, met the requirements of the EPC.
II. The opponent appealed and requested that the patent be revoked.
III. The proprietor (respondent) originally requested that the appeal be dismissed, but by letter of 4 November 2019 stated the following:
The patent proprietor no longer approves of the text of the patent as maintained by the opposition division in the interlocutory decision of April 8, 2014.
The patent proprietor hereby withdraws all pending requests (main request and auxiliary requests No.1-8), and also withdraws the request for oral proceedings.
No alternative requests were submitted.
IV. In response, the opponent noted that the proprietor had not indicated that it would not be submitting an amended text.
1. Article 113(2) EPC stipulates that the EPO may decide upon a European patent only in the text submitted to it, or agreed to by the proprietor of the patent.
2. This substantive requirement is not fulfilled if the proprietor - as in the present case - expressly states that it withdraws its approval of the text of the amended patent held allowable by the Opposition Division and withdraws all pending requests without replacing any of them (see section III above).
3. There is thus no text of the patent on the basis of which the Board can consider the appeal. The fact that the proprietor did not explicitly declare that an amended text would not be submitted, does not affect this finding. In these circumstances, the appeal proceedings are to be terminated by a decision ordering the revocation of the patent, without going into the substantive issues (see e.g. decisions T 73/84 Widerruf auf Veranlassung des Patentinhabers OJ EPO 1985, 241; T 186/84 Widerrufsantrag des Patentinhabers OJ EPO 1986, 79; and T 2528/10).
For these reasons it is decided that:
The decision under appeal is set aside.
The patent is revoked.