3.2. The requirement of a text submitted by the applicant

In T 1440/12 the board held that in the case of opposition, the intention behind Art. 113(2) EPC 1973 is that the EPO may not maintain a patent according to a particular text unless the proprietor has consented unambiguously to the patent being maintained in that form. The "text submitted" is to be understood to mean a text submitted by the proprietor with the clear intention that the patent be maintained according to that text, at least as an auxiliary measure. In the case in issue, although six new requests were enclosed with the reply to the statement of grounds of appeal, the proprietor/respondent did not actually request maintenance of the patent on the basis of any of them, but merely described them as "six auxiliary requests that the proprietor may subsequently choose to rely upon". This phrase, although the submissions in question were termed "requests", made it clear that the proprietor was not at that point requesting maintenance of the patent based on them, but merely leaving open the possibility that it might choose to make such a request subsequently.

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