T 0683/18 12-04-2021
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Gas turbine engine
Basis of decision - text or agreement to text withdrawn by patent proprietor
Basis of decision - patent revoked
I. The appellant-opponent lodged an appeal, received on 13 March 2018, against the interlocutory decision of the Opposition Division posted on 3 January 2018 concerning maintenance of the European Patent No. 2610460 in amended form, and simultaneously paid the appeal fee. The statement setting out the grounds of appeal was received on 11 May 2018.
The appellant-proprietor also appealed the interlocutory decision by notice of appeal received on 13 March 2018 and paid the appeal fee on the same day. The statement setting out the grounds of appeal was received on 14 May 2018.
II. The Opposition Division held that the auxiliary request 2 before it met the requirements of the EPC.
III. Oral proceedings were duly held by videoconference before the Board on 12 April 2021.
IV. The appellant-opponent requests cancellation of the decision under appeal and revocation of the patent.
The appellant-proprietor stated during the oral proceedings before the Board that they no longer approved the text upon which the patent was granted and further withdrew all and any requests currently on file.
1. The appeals are admissible.
2. Pursuant to Article 113(2) EPC the EPO shall examine, and decide upon the European patent only in the text as submitted or agreed by the proprietor of the patent.
No such agreement exists where the appellant-proprietor expressly states no longer to approve the text of the patent as granted and to withdraw all pending requests, as in the case at issue.
Therefore, no text of the patent is on file on the basis of which the Board can consider the appeal. It is established case law that in these circumstances, the proceedings are to be terminated by a decision ordering revocation of the patent, without a further examination of the merits of the case, see Case Law of the Boards of Appeal, 9th edition 2019 (CLBA) IV.D.2.
For these reasons it is decided that:
1. The decision under appeal is set aside.
2. The patent is revoked.