T 0989/13 () of 20.2.2019

European Case Law Identifier: ECLI:EP:BA:2019:T098913.20190220
Date of decision: 20 February 2019
Case number: T 0989/13
Application number: 07254329.1
IPC class: A61B 17/00
A61B 17/12
Language of proceedings: EN
Distribution: D
Download and more information:
Decision text in EN (PDF, 226.954K)
Documentation of the appeal procedure can be found in the Register
Bibliographic information is available in: EN
Versions: Unpublished
Title of application: Percutaneous catheter directed intravascular occlusion devices
Applicant name: AGA Medical Corporation
Opponent name: Occlutech Holding AG (CH) / Occlutech GmbH (DE)
Board: 3.2.02
Headnote: -
Relevant legal provisions:
European Patent Convention Art 113(2)
European Patent Convention Art 101
Keywords: Withdrawal of the approval to the text of the patent as granted - revocation of the patent
Catchwords:

-

Cited decisions:
T 0073/84
T 0186/84
T 0237/86
T 0459/88
T 0655/01
T 1526/06
T 1960/12
T 1535/13
T 1898/14
Citing decisions:
-

Summary of Facts and Submissions

I. By way of its interlocutory decision, the Opposition Division held that European Patent No. 2 014 240 as amended met the requirements of the European Patent Convention.

II. The joint opponents (joint appellants) filed an appeal against this decision requesting revocation of the patent.

III. The patent proprietor (respondent) requested dismissal of the appeal as a main request and submitted auxiliary requests 1 to 6.

IV. In a communication annexed to a summons to oral proceedings, the Board expressed its provisional opinion on the requests before it.

V. With letter dated 18 February 2019, the respondent disapproved the text of the granted patent, indicating that it would not be submitting an amended text nor attending the scheduled oral proceedings and that it expected the patent to be revoked.

VI. The oral proceedings were subsequently cancelled.

Reasons for the Decision

1. Under Article 113(2) EPC, the European Patent Office shall consider and decide upon the European patent only in the text submitted to it, or agreed, by the proprietor of the patent. This principle has to be strictly observed also in opposition and opposition appeal proceedings.

2. The respondent, by withdrawing approval of the text of the granted patent, indicating that it would not be submitting an amended text and expecting the patent to be revoked, has thereby withdrawn its approval of any text for maintenance of the patent. Since the text of the patent is at the disposition of the patent proprietor, a patent cannot be maintained against the patent proprietor's will. There is therefore no text of the patent, on the basis of which the Board can maintain the patent.

3. In view of the above, the Board concludes that the patent must be revoked as envisaged in Article 101 EPC and also expected by the respondent. This conclusion is also in line with established case law in, inter alia, T 73/84, T 186/84, T 237/86, T 459/88, T 655/01, T 1526/06, T 1960/12, T 1535/13 and T 1898/14.

Order

For these reasons it is decided that:

1. The decision under appeal is set aside.

2. The patent is revoked.

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