T 1790/21 12-05-2023
A BREATHING ASSISTANCE APPARATUS WITH A MANIFOLD TO ADD AUXILIARY GASES TO AMBIENT GASES
Basis of decision - text or agreement to text withdrawn by patent proprietor
Basis of decision - patent revoked
The appeals were filed by the proprietor and the opponent against the interlocutory decision of the opposition division to maintain the patent in amended form.
In the course of the oral proceedings held before the Board on 12 May 2023, the patent proprietor declared that it withdrew its approval to any possible text of the patent. It further withdrew all requests on file. It further withdrew its appeal.
The appellant opponent requested that the decision under appeal be set aside and that the patent be revoked.
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.
Such an agreement cannot be deemed to exist where - as in the present case - the proprietor expressly states that it no longer approves the text of the patent and withdraws all pending requests.
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 (Case Law of the Boards of Appeal of the European Patent Office, 10th edition 2022, IV.D.2).
For these reasons it is decided that:
1. The decision under appeal is set aside.
2. The patent is revoked.