T 1973/21 25-04-2023
Suction nozzle for vacuum cleaner or the like
The appeal was filed by the appellant opponent against the decision of the opposition division to maintain the patent in amended form.
The appellant opponent requested to set aside the decision under appeal and revoke the patent. They auxiliarily requested oral proceedings.
In their letter dated 4 April 2023, the respondent proprietor declared that they will not attend the oral proceedings and requested that the patent be revoked.
Thereupon, oral proceedings scheduled for 12 July 2023 were cancelled.
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.
As variously stated in case law, a request of the patent proprietor themselves during opposition proceedings to revoke their patent is equivalent to a withdrawal of agreement to the text of the patent and of all pending requests, cf. Case Law of the Boards of Appeal of the European Patent Office, 10th edition 2022 (CLBA), IV.D.2 and T186/84 OJ 1986, 79, cited therein.
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 (CLBA, IV.D.2).
For these reasons it is decided that:
1. The decision under appeal is set aside
2. The patent is revoked