T 2918/18 03-05-2022
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ELEVATOR MOTOR BRAKE TORQUE MEASUREMENT DEVICE
Basis of decision - text or agreement to text withdrawn by patent proprietor
Basis of decision - patent revoked
I. An appeal was filed by the appellant (opponent) against the interlocutory decision of the opposition division in which it found that, account being taken of the amendments made by the patent proprietor during the opposition proceedings, European patent No. 1 855 978 met the requirements of the EPC.
II. The appellant requested that the decision under appeal be set aside and the patent be revoked.
III. In its reply to the appeal, the respondent (patent proprietor) requested that the appeal be dismissed or, as an auxiliary measure, that the patent be maintained on the basis of one of auxiliary requests 1 to 4, filed with the reply.
IV. The Board issued a summons to oral proceedings and a subsequent communication in which it gave the Board's provisional opinion on several matters of the case.
V. Oral proceedings took place by videoconference on 3 May 2022 during which the respondent declared that it withdrew all pending requests, and declared its disapproval of any text for maintenance of the patent.
1. Pursuant to Article 113(2) EPC, the EPO shall examine, and decide upon, the European patent only in the text submitted to it, or agreed, by the patent proprietor of the patent.
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 any text for maintenance of the patent.
3. There is therefore no text of the patent on the basis of which the Board can consider the appeal. 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).
For these reasons it is decided that:
1. The decision under appeal is set aside.
2. The patent is revoked.