T 1110/19 29-11-2022
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PERMEABLE BELT FOR NONWOVENS PRODUCTION
Basis of decision - text or agreement to text withdrawn by patent proprietor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 in which it rejected the opposition against European patent No. 2 334 859.
II. The appellant requested that the decision under appeal be set aside and the patent be revoked.
III. The respondent (patent proprietor) requested that the appeal be dismissed and the patent be maintained as granted (main request), or, as an auxiliary measure, that the patent be maintained in amended form based on auxiliary requests 1 to 4, in the given order as filed with letter dated 29 April 2022.
IV. The parties were summoned to oral proceedings.
V. During the oral proceedings before the Board, the respondent withdrew all pending claim requests and declared its disapproval of any text for maintenance of the patent.
1. Pursuant to Article 113(2) EPC, the EPO shall examine, and decide upon a European patent only in the text submitted to it, or agreed, by the patent proprietor. Such an agreement cannot be deemed to exist where the patent proprietor states that it no longer approves the text of the patent, withdraws all pending requests, and proposes no text for maintenance of the patent.
2. In such a case, there is no text of the patent on the basis of which the Board can consider the appeal. Under 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, 10**(th) edition 2022, IV.D.2).
Order
For these reasons it is decided that:
1. The decision under appeal is set aside.
2. The patent is revoked.