T 0055/16 17-01-2020
MODIFIED POLYMERS HAVING CONTROLLED TRANSMISSION RATES
I. This decision concerns the appeals filed by the opponent and the patent proprietor against the decision of the opposition division finding that European patent EP 1 092 120 as amended meets the requirements of the EPC.
II. The opponent/appellant requested that the decision under appeal be set aside and that the patent be revoked in its entirety.
III. By letter dated 18 November 2019, the patent
"The proprietor/appellant hereby states that the text in which the patent was granted is no longer approved and that it will not be submitting an amended text".
1. Pursuant to Article 113(2) EPC the EPO shall consider, and decide upon, the European patent only in the text submitted to it, or agreed, by the proprietor of the patent.
2. Such an agreement cannot be deemed to exist if the patent proprietor/appellant - as in the present case - expressly states that it no longer approves the text of the patent as granted and declares that it will not be submitting an amended text.
3. Where there is no text of the patent on which basis the board can consider the appeal of the patent proprietor/appellant, the only possibility available to the board is to revoke the patent as envisaged by Article 101 EPC. In this context reference is made to T 73/84 (OJ EPO 1985, 241) as well as to T 2405/12 and the decisions cited therein.
For these reasons it is decided that:
1. The decision under appeal is set aside.
2. The patent is revoked.