T 1814/17 07-07-2022
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SYSTEM FOR ADMINISTERING REDUCED PRESSURE TREATMENT HAVING A MANIFOLD WITH A PRIMARY FLOW PASSAGE AND A BLOCKAGE PREVENTION MEMBER
Smith and Nephew, Inc.
Paul Hartmann AG
I. Both opponents and the proprietor filed an appeal against the interlocutory decision of the Opposition Division to maintain European patent No 1 993 652 on the basis of the third auxiliary request then on file.
II. Oral proceedings before the Board took place on 7 July 2022.
III. At the beginning of the oral proceedings, appellant 1 (patent proprietor) requested that the decision under appeal be set aside and the patent be maintained as granted (main request), or that the patent be maintained on the basis of one of auxiliary requests 1-4 filed with the statement setting out the grounds of appeal dated 20 October 2017 or on the basis of auxiliary request 5 filed with the reply dated 5 March 2018.
Both appellants 2 and 3 (opponents 1 and 2) requested that the decision under appeal be set aside and the patent be revoked.
IV. During the oral proceedings, the patent proprietor withdrew their appeal and all requests on file.
1. Article 113(2) EPC provides that the European Patent Office must 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. Since the text of the patent is at the disposition of the patent proprietor, their patent cannot be maintained against their will.
3. During the appeal proceedings the patent proprietor declared that they no longer wished to maintain their requests. By this, they unequivocally withdrew their approval of the text of the patent as granted or of the patent as amended according to any of the then pending auxiliary requests.
4. There is therefore no text of the patent on the basis of which the Board can consider compliance with the requirements of the EPC. Therefore, the decision under appeal must be set aside and the patent be revoked.
For these reasons it is decided that:
1. The decision under appeal is set aside.
2. The patent is revoked.