T 1062/17 29-03-2022
Download and more information:
A BREATHABLE INTERFACE SYSTEM FOR TOPICAL REDUCED PRESSURE
Basis of decision - revocation of the patent at request of the patent proprietor
Basis of decision - text or agreement to text withdrawn by patent proprietor
Basis of decision - patent revoked
I. An appeal was filed by the appellant (opponent) against the decision of the opposition division rejecting the opposition to European patent No. 2 109 427. It requested that the decision under appeal be set aside and the patent be revoked.
II. With its response, the respondent (patent proprietor) requested that the appeal be dismissed or, as an auxiliary measure, that the patent be maintained according to one of the first to third auxiliary requests filed therewith.
III. The Board issued a summons to oral proceedings and a subsequent communication containing its provisional opinion.
IV. With letter dated 23 July 2020, the respondent filed new auxiliary requests 1 to 3 replacing its previous requests.
V. With letter dated 25 March 2022, the respondent filed a new first auxiliary request.
VI. Oral proceedings by videoconference were held on 29 March 2022, at the end of which the respondent withdrew all its requests and declared that it withdrew its approval to the text in which the patent was granted and in any amended form so that the patent could be revoked.
The appellant maintained its initial requests.
1. Pursuant to Article 113(2) EPC, the EPO shall examine, 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 where - as in the present case - the patent proprietor expressly states that it no longer approves the text of the patent and withdraws all pending requests.
3. There is therefore no text of the patent on the basis of which the Board can consider the appeal. In these circumstances, the proceedings are to be terminated by a decision ordering revocation of the patent, without examination as to patentability (see e.g. Case Law of the Boards of Appeal of the European Patent Office, 9th edition 2019, IV.D.2).
For these reasons it is decided that:
1. The decision under appeal is set aside.
2. The patent is revoked.