T 2692/17 () of 16.11.2021

European Case Law Identifier: ECLI:EP:BA:2021:T269217.20211116
Date of decision: 16 November 2021
Case number: T 2692/17
Application number: 12861657.0
IPC class: F01D 1/04
F02C 3/107
F02K 3/06
Language of proceedings: EN
Distribution: D
Download and more information:
Decision text in EN (PDF, 233 KB)
Documentation of the appeal procedure can be found in the Register
Bibliographic information is available in: EN
Versions: Unpublished
Title of application: GAS TURBINE ENGINE
Applicant name: Raytheon Technologies Corporation
Opponent name: Safran Aircraft Engines
Board: 3.2.06
Headnote: -
Relevant legal provisions:
European Patent Convention Art 113(2)
Keywords: Basis of decision - text or agreement to text withdrawn by patent proprietor
Catchwords:

-

Cited decisions:
-
Citing decisions:
-

Summary of Facts and Submissions

I. An appeal was filed by the appellant (opponent) against the interlocutory decision of the opposition division in which it held that the European patent No. 2 776 677 in an amended form met the requirements of the EPC.

II. The appellant requested that the interlocutory decision be set aside and the patent be revoked.

III. The respondent (patent proprietor) requested that the appeal be dismissed.

IV. The Board issued a summons to oral proceedings and a subsequent communication containing its provisional opinion.

V. Oral proceedings before the Board were held by video conference on 16 November 2021, during which the proprietor withdrew its approval of the text of the patent in any form.

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. Such an agreement cannot be deemed to exist where - as in the present case - the patent proprietor expressly states that it no longer approves the text of the patent.

3. 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. It is moreover clear that the respondent wishes to prevent any text whatsoever of the patent from being maintained. There is therefore no text of the patent on the basis of which the Board can consider the appeal.

4. In these circumstances, the proceedings are to be terminated by a decision ordering revocation of the patent, without examination as to patentability (see e.g. Case Law of the Boards of Appeal of the European Patent Office, 9th edition 2019, IV.D.2).

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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