T 2170/19 24-11-2022
Basis of decision - text or agreement to text withdrawn by patent proprietor
Basis of decision - patent revoked
I. The appeal by the opponent (appellant) lies from the interlocutory decision of the opposition division concerning maintenance of European patent No. 1 866 368 in amended form according to the claims of the main request filed with letter of 1 November 2018 and an adapted description.
II. In their statement of grounds of appeal the appellant requested that the decision of the opposition division decision be set aside and the patent be revoked.
III. In their rejoinder to the statement of grounds of appeal the patent proprietor (respondent) requested that the appeal be dismissed (main request) or, alternatively, that the patent be maintained in amended form according to any of the first to fifth auxiliary requests filed therewith.
IV. The parties were summoned to oral proceedings and a communication pursuant to Article 15(1) RPBA 2020 was then issued by the Board.
V. With letter of 22 November 2022 the respondent stated:
"The proprietor hereby withdraws it approval of the text on which the European patent was granted and the text on which the European patent was maintained. The proprietor also withdraws all auxiliary requests and will not be filing a replacement text or any further requests.
Consequently, the proceedings are to be terminated by a decision ordering the revocation of the patent without reference to any of the substantive issues".
VI. With letter of 24 November 2022 the oral proceedings were cancelled.
1. Under the provisions of Article 113(2) EPC, the EPO shall decide upon the European patent only in the text submitted to it, or agreed, by the proprietor of the patent.
2. In the present case the respondent/proprietor unambiguously indicated in their letter dated 22 November 2022 that they withdrew their approval of the text in which the patent was granted and expressed their disapproval of any version of the text of the then pending requests. Therefore, agreement by the patent proprietor pursuant to Article 113(2) EPC cannot be held to be given.
3. Under such circumstances a substantive requirement for maintaining the patent is lacking and the proceedings are to be terminated by a decision ordering revocation, without going into the substantive issues (see e.g. decisions T 73/84, OJ EPO 1985, 241 and T 186/84, OJ EPO 1986, 79).
For these reasons it is decided that:
1. The decision under appeal is set aside.
2. European patent No. 1 866 368 is revoked.