T 0220/12 () of 22.6.2015

European Case Law Identifier: ECLI:EP:BA:2015:T022012.20150622
Date of decision: 22 June 2015
Case number: T 0220/12
Application number: 05112409.7
IPC class: A61B 19/08
A61B 19/10
A61F 13/02
Language of proceedings: EN
Distribution: D
Download and more information:
Decision text in EN (PDF, 220 KB)
Documentation of the appeal procedure can be found in the Register
Bibliographic information is available in: EN
Versions: Unpublished
Title of application: Surgical Drape
Applicant name: KCI Licensing, Inc.
Opponent name: Smith and Nephew, Inc.
Board: 3.2.02
Headnote: -
Relevant legal provisions:
European Patent Convention Art 113(2)
Keywords: Basis of decision - text or agreement to text withdrawn by patent proprietor
Basis of decision - patent revoked


Cited decisions:
T 0073/84
T 0655/01
T 2177/12
Citing decisions:
T 1502/14
T 0048/15
T 2680/17
T 2312/18

Summary of Facts and Submissions

I. The opponent has appealed the Opposition Division's decision, dispatched on 1 December 2011, to maintain European patent No. 1 637 088 in amended form.

II. The appellant has requested that the decision under appeal be set aside and that the patent be revoked in its entirety.

III. In its letter dated 22 May 2015 the respondent made, inter alia, the following statements:

"The Patentee withdraws the Main, First, and Second auxiliary requests filed on 6 August 2012;

The Patentee disapproves the text of the granted patent and the text approved for grant by the Opposition division in their interlocutory decision of 1 December 2011;

The Patentee does not request maintenance of the Patent".

The main, and the first and second auxiliary requests mentioned in that letter constituted all the respondent's requests which were pending until then.

Reasons for the Decision

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

2. In consideration of the respondent's submissions filed by letter dated 22 May 2015, there is no text of the patent on the basis of which the Board can examine the appeal.

3. In that letter, the respondent also made reference to decision T 655/01, stating that it applied to the patent.

4. In T 655/01, in accordance with a line of decisions going back to T 73/84, the board took the view that, if the proprietor of a European patent states in opposition or appeal proceedings that it no longer approves the text in which the patent was granted and will not submit an amended text, the patent has to be revoked.

Therefore, it can be inferred that the respondent wishes revocation of the patent.

5. The Board sees no reasons to deviate from the established jurisprudence, also recently followed in T 2177/12, which even leads to acceding to the requests of both parties.


For these reasons it is decided that:

1. The decision under appeal is set aside.

2. The patent is revoked.

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