T 0562/19 (PAPER COMPRISING MICROFILAMENTS/Teijin Aramid) 07-12-2022
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PAPER COMPRISING MICROFILAMENTS
Basis of decision - text or agreement to text withdrawn by patent proprietor
Basis of decision - patent revoked
I. The appeal by the opponent is from the interlocutory decision of the opposition division maintaining European patent No. 2 661 522 in amended form according to the main request filed during oral proceedings.
With the statement of grounds of appeal the appellant requested revocation of the patent.
II. At the end of the oral proceedings held before the board on 7 December 2022, the patent proprietor (and respondent) withdrew all the pending requests - i.e. the main, first and second auxiliary request filed with the reply to the statement of grounds of appeal, and the third auxiliary request submitted during the hearing, and it stated that it did no longer approve the text of the patent in any form. The appellant maintained the request that the decision under appeal be set aside and the patent be revoked.
1. According to Article 113(2) EPC, the EPO shall decide on European patents only in the text submitted to it or agreed upon by the patent proprietor. Since in the present case the patent proprietor withdrew all pending requests and expressly declared disapproval of any text for maintenance of the patent, there is no version of the patent on which the board could base the assessment of the appeal.
2. In these circumstances, the proceedings must be terminated with a decision ordering the revocation of the patent without addressing the substantial arguments (Case Law of the Boards of Appeal, 10th edition, 2022, IV.D.2).
For these reasons it is decided that:
1. The decision under appeal is set aside.
2. The patent is revoked.