T 1834/21 27-03-2023
A WIND TURBINE
Basis of decision - text or agreement to text withdrawn by patent proprietor
Basis of decision - patent revoked
I. The appeals were filed by the appellant (proprietor) and the appellant (opponent) against the interlocutory decision of the opposition division finding that, on the basis of the first auxiliary request, the patent in suit met the requirements of the EPC.
II. Oral proceedings before the Board were held as a videoconference on 27 March 2023.
III. In the course of the oral proceedings, the appellant proprietor declared that they withdrew their appeal and all claim requests on file and declared that there was no longer any agreed text of the patent.
The appellant opponent requested that the decision under appeal be set aside and the patent revoked in its entirety.
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 withdraws all pending requests and declares that there is no longer any agreed text of the patent.
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.