T 1504/20 07-11-2022
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AN INSTRUMENT FOR ENDOSCOPIC APPLICATIONS OR THE LIKE
The appeals were filed by the proprietor (appellant-proprietor) and the opponent (appellant-opponent) against the interlocutory decision of the opposition division finding that, on the basis of auxiliary request 12A then on file, the patent met the requirements of the EPC.
With its letter dated 25 October 2022 the appellant-proprietor withdrew its appeal. It also declared that it did not approve anymore of the text and claims of the patent in any amended form, and added that it trusted that the appeal proceedings would, as a consequence, be terminated and the patent be entirely revoked.
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 proprietor of the patent. Such an agreement cannot be deemed to exist where - as in the present case - the appellant-proprietor expressly states that it no longer approves of the text and the claims of the patent in any amended form, and adds that the patent be revoked.
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 Case Law of the Boards of Appeal of the European Patent Office, 10th edition 2022, IV.D.2).
The appellant-proprietor requested that the appeal fee be reimbursed under Rule 103(1)(b) EPC. This legal provision provides for the reimbursement of 100% of the appeal fee. However, Rule 103(1)(b) EPC is not applicable in the present case as it concerns the reimbursement of the appeal fee in case the appeal was withdrawn before the filing of the statement of grounds of appeal and before the period for filing that statement has expired. Relevant for the present case is Rule 103(3)(a) EPC, because a date for oral proceedings had been set and the appeal has been withdrawn within one month of notification of the communication issued in preparation of the oral proceedings. Pursuant to Rule 103(3)(a) EPC, the appeal fee is to be reimbursed at 50%.
For these reasons it is decided that:
The decision under appeal is set aside.
The patent is revoked.
The appeal fee is reimbursed at 50%.