T 0744/13 () of 18.4.2017

Summary of Facts and Submissions

I. In its interlocutory decision dated 23 January 2013 the opposition division found that European patent No. 1 447 066 in an amended form met the requirements of the EPC.

II. Appeals against this interlocutory decision were filed by the appellant (opponent I) and the appellant (opponent II), each requesting that the decision be set aside and the patent be revoked.

III. The respondent (patent proprietor) requested that the appeals be dismissed, in the alternative that the patent be maintained according to one of auxiliary requests 1 to 7.

IV. With letter of 3 March 2017 the respondent wrote:

"On behalf of the Proprietor, we hereby withdraw all of our requests and our approval of the text on which basis the patent has been granted, with the intention that the patent shall be immediately revoked. This withdrawal is conditional on the patent being revoked without a communication pursuant to Article 15(1) of the Rules of Procedure of the Boards of Appeal being issued."

Reasons for the Decision

1. Under Article 113(2) EPC 1973, the European Patent Office shall consider and decide upon the European patent only in the text submitted to it, or agreed, by the proprietor of the patent. This principle has to be strictly observed also in opposition and opposition appeal proceedings.

2. With letter of 3 March 2017 the respondent withdrew its approval of any text for maintenance of the patent provided that no communication was issued by the Board. With no such communication having been issued, the condition for the respondent's withdrawal of its approval of any text for maintenance of the patent is met.

3. Since the text of the patent is at the disposition of the patent proprietor, a patent cannot be maintained against the patent proprietor's will. With the respondent's withdrawal of approval of any text for maintenance of the patent, there is no text of the patent on the basis of which the Board can consider the appeal. It is moreover clear that the respondent wishes to prevent any text whatsoever of the patent from being maintained.

4. However, the patent proprietor cannot have the proceedings terminated by stating that it is surrendering the European patent; surrender of a patent is mentioned in Rule 84 EPC as a possibility in national proceedings but is not provided for in the Convention for the procedure before the EPO. Also revocation at the request of the patent proprietor in the framework of opposition or opposition appeal proceedings is not possible, as it is expressly excluded by Article 105a(2) EPC. At the same time, the proceedings ought to be terminated as quickly as possible in the interests of legal certainty. The only possibility in such a case is for the Board to revoke the patent as envisaged, for other reasons, in Article 101 EPC.

5. In view of the above, the Board concludes that the patent must be revoked. This conclusion is also in line with case law developed by the Boards of Appeal in inter alia T 73/84, T 186/84, T 237/86, T 459/88, T 655/01, T 1526/06 and T1960/12.

Order

For these reasons it is decided that:

1. The decision under appeal is set aside.

2. The patent is revoked.