T 1182/17 (Black-plate/Nippon Steel) 22-10-2020
CHROMATE-FREE BLACK COATED METAL PLATE
Basis of decision - text or agreement to text withdrawn by patent proprietor
Basis of decision - patent revoked
I. The appeal from the opponent lies from the decision of the opposition division to reject the opposition against European patent No. 2 436 516.
II. With its statement of grounds of appeal the appellant requested to set aside the decision and to revoke the patent in its entirety.
III. In its reply, the patent proprietor and respondent requested to dismiss the appeal. Oral proceedings were requested as an auxiliary measure.
IV. The board issued a communication under Article 15(1) RPBA 2020 to inform the parties of its preliminary opinion that none of the grounds of opposition prejudiced the maintenance of the patent as granted.
V. With letter dated 21 October 2020 the respondent declared the following:
"Patentee herewith declares that he no longer approves the text in which the patent was granted".
VI. In view of this declaration the oral proceedings were cancelled.
1. Article 113(2) EPC requires that the European Patent Office decides upon the European patent only in the text submitted to it, or agreed, by the proprietor of the patent.
2. With its letter of 21 October 2020 the patent proprietor explicitly disapproved the text of the patent without filing any other amended text on which further prosecution of the appeal could be based.
3. Since there is no alternative text of the patent which could be deemed to be approved by the patent proprietor, the above declaration of the patentee is considered to imply that the request to hold oral proceedings is also withdrawn (i.e. there is no text to be discussed).
4. It is established case law of the boards of appeal that in these circumstances, the proceedings are to be terminated by a decision ordering revocation of the patent, without going into the substantive issues (see, inter alia, decisions T 73/84, OJ EPO 1985, 241; T 186/84, OJ EPO 1986, 79; T 1513/16 and Case Law of the Boards of Appeal of the EPO, 9th edition, 2019, IV.D.2, page 1122).
For these reasons it is decided that:
1. The decision under appeal is set aside.
2. The patent is revoked.