T 1940/22 15-05-2024
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SWALLOWABLE DRUG DELIVERY DEVICE
I. Appeals were filed by the patent proprietor and by the opponent against the interlocutory decision of the Opposition Division finding that then auxiliary request 17 filed during the oral proceedings before the Opposition Division met the requirements of the EPC.
II. Oral proceedings before the Board took place on 15 May 2024. Further details of the oral proceedings can be found in the minutes.
In the course of the oral proceedings, the appellant-patent proprietor declared that they no longer approved the text in which the patent had been granted and withdrew all pending claim requests.
1. Pursuant to Article 113(2) EPC, the EPO shall examine, and decide upon, the 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 as granted and withdraws all pending requests.
2. 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, 10th edition 2022, IV.D.2).
For these reasons it is decided that:
The decision under appeal is set aside.
The patent is revoked.