| European Case Law Identifier: | ECLI:EP:BA:2019:T162415.20190507 | ||||||||
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| Date of decision: | 07 May 2019 | ||||||||
| Case number: | T 1624/15 | ||||||||
| Application number: | 09759847.8 | ||||||||
| IPC class: | A61F 2/16 | ||||||||
| Language of proceedings: | EN | ||||||||
| Distribution: | D | ||||||||
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| Title of application: | INTRAOCULAR LENS DELIVERY DEVICE HAVING A CARTRIDGE WITH AN INTERNAL COATING | ||||||||
| Applicant name: | Alcon Research, Ltd. | ||||||||
| Opponent name: | Garberg, Morten | ||||||||
| Board: | 3.2.08 | ||||||||
| Headnote: | - | ||||||||
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| Keywords: | - | ||||||||
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Summary of Facts and Submissions
I. By its decision posted on 3 July 2015 the opposition division found that European patent No. 2 349 091, in amended form according to the main request then on file, and the invention to which it related met the requirements of the EPC.
II. The opponent (appellant) lodged an appeal against that decision in the prescribed form and within the prescribed time limit.
III. Oral proceedings before the Board of appeal were held on 20 September 2018.
IV. The appellant requested that the decision under appeal be set aside and that the patent be revoked. Moreover, it requested an adjournment of the oral proceedings.
The respondent (patent proprietor) requested that the appeal be dismissed and that the patent be maintained in the amended form agreed by the opposition division or, in the alternative, that the patent be maintained on the basis of auxiliary request 1 filed at the oral proceedings before the Board of Appeal.
The Board decided to grant the request for adjournment of oral proceedings, with a new date to be communicated to the parties.
V. By communication of 26 September 2018 the parties were summoned to oral proceedings to be held on 7 May 2019.
VI. By letter of 26 April 2019 the respondent declared that it did no longer approved either the text in which the patent was granted or in any amended form.
VII. The oral proceedings were cancelled by communication of 30 April 2019.
Reasons for the Decision
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 proprietor expressly states that it no longer approves the text in which the patent was granted or in any amended form.
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 (Case Law of the Boards of Appeal of the European Patent Office, 8th edition 2016, IV.C.5.2).
Order
For these reasons it is decided that:
1. The decision under appeal is set aside.
2. The patent is revoked.
