T 0787/22 26-06-2024

Reasons for the Decision

1. Under Article 113(2) EPC, the European Patent Office shall examine and decide upon the European patent application or the European patent only in the text submitted to it, or agreed by the applicant or the proprietor of the patent.

2. In view of the appellant's (patent proprietor's) statement in their letter dated 25 June 2024 (point III. above), there is no approved text on the basis of which the board could consider the appeal and examine whether a ground for opposition prejudices the maintenance of the patent. It is also no longer possible to take a decision as to substance because the absence of an approved text precludes any substantive examination of the alleged impediments to patentability (T 186/84, OJ 1986, 79, point 5 of the Reasons; T 646/08, point 4 of the Reasons and T 2434/18, point 4 of the Reasons. See also Case Law of the Boards of Appeal of the European Patent Office, 10th edition 2022, III.B.3.3 and IV.D.2).

3. In a situation such as the present one, where the patent proprietor appealed against a decision of the opposition division revoking their patent and where the appeal becomes devoid of subject-matter for substantive examination following the withdrawal of the patent proprietor's agreement to any text for the maintenance of the patent, the appeal proceedings are to be terminated, and the opposition division's decision to revoke the patent becomes final (see T 728/11, point 3; T 477/22, point 3).