T 0583/18 (Proprietor disapproves text as granted) 02-03-2021
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A PHYTOSYSTEM, ITS USE AND METHOD FOR TREATMENT OF SEWAGE
Basis of decision - text or agreement to text withdrawn by patent proprietor
Basis of decision - patent revoked
I. The opponent's (appellant's) appeal lies from the decision of the opposition division to reject the opposition against European patent No. EP 2 274 245 B1.
II. In its communication under Article 15(1) RPBA 2020, the board was of the preliminary opinion that the patent should be revoked.
III. By letter of 1 March 2021, the respondent (patent proprietor) indicated that it no longer approved the text of the patent as granted and would not be filing a replacement text, thus requesting termination of the opposition appeal proceedings.
IV. The oral proceedings were subsequently cancelled.
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.
2. The respondent (patent proprietor) by disapproving the text of the patent as granted and by declaring that it would not file any replacement text has thereby withdrawn its approval of any text for maintenance of the patent.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 consider the present appeal.
3. Where there is no text of the patent on which basis the board can consider the present appeal, the patent can only be revoked as envisaged in Article 101 EPC (Case Law of the Boards of Appeal of the EPO, 9th edition 2019, III.B.3.3).
For these reasons it is decided that:
1. The decision under appeal is set aside.
2. The patent is revoked.