T 0200/90 12-02-1991
A plastic bag with gusset folds and perforations
1) Bischof & Klein
2) Fardem B.V.
Withdrawal of agreement to text of patent by the
I. European patent No. 0 092 885 granted on the basis of European patent application No. 83 200 584.7 was revoked by a decision of the Opposition Division dated 15 January 1990.
II. On 9 March 1990 the Appellants (Proprietors of the patent) filed an appeal against this decision and paid the fee for appeal.
The Statement of Grounds of Appeal was filed on 2 May 1990.
III. On 11 January 1991 the Board issued a summons to oral proceedings accompanied by a communication pursuant to Article 11(2) of the Rules of Procedure of the Boards of Appeal.
IV. With a letter dated 24 January 1991 the Appellants informed the Board that they were not interested in further prosecution of the case, that they no longer approved the text in which the patent was granted and that they would not submit an amended text. They also requested that the scheduled oral proceedings be cancelled.
1. The appeal complies with Articles 106 to 108 and Rules 1(1) and 64 EPC; it is, therefore, admissible.
2. The Appellants have withdrawn their approval of the text of the patent and at the same time stated that they would not be submitting an amended text. There is, therefore, no text on the basis of which the Board can consider the appeal. In these circumstances it can only be assumed that the Appellants wish to prevent any text whatever of the patent from being maintained, see T 73/84 (OJ EPO 1985, 241). The only possibility for the Board is, therefore, to dismiss the appeal and thereby confirm revocation of the patent.
For these reasons, it is decided that:
The appeal is dismissed.