| European Case Law Identifier: | ECLI:EP:BA:2023:T251819.20230710 | ||||||||
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| Date of decision: | 10 July 2023 | ||||||||
| Case number: | T 2518/19 | ||||||||
| Application number: | 09819170.3 | ||||||||
| IPC class: | A61L 17/00 A61K 38/00 A61L 31/00 A61P 7/04 A61L 31/04 A61L 31/14 |
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| Language of proceedings: | EN | ||||||||
| Distribution: | D | ||||||||
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| Title of application: | TISSUE PLUG | ||||||||
| Applicant name: | 3-D Matrix, Ltd. | ||||||||
| Opponent name: | Potter Clarkson LLP | ||||||||
| Board: | 3.3.10 | ||||||||
| Headnote: | - | ||||||||
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| Keywords: | - | ||||||||
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Summary of Facts and Submissions
I. The appeal lies from the decision of the opposition division which resulted in European patent No. 2 345 433 being maintained in amended form.
II. With a letter dated 7 July 2023, the respondent-patent proprietor stated that it no longer approved of the text upon which the patent was maintained by the opposition division. It withdrew any other claim request, informed the board that it will not be submitting others. It stated that it awaited revocation of the patent without substantive examination.
Reasons for the Decision
1. The appeal is admissible.
2. The respondent withdrew its approval of the text of the patent as maintained after opposition proceedings. It further withdrew all other auxiliary requests, stated that no amended text will be submitted and that it awaits revocation of the patent without reference to the patentability issues. It relied on T 73/84 and the Case Law of the Boards of Appeal, 10th ed. 2022, IV.D.2, page 1265.
3. Under Article 113(2) EPC, the European Patent Office must consider a European patent only in the text submitted to it, or agreed by the proprietor of the patent. There is, however, no text of the patent on the basis of which the board can consider this appeal.
Since the text of the patent is at the disposition of the patent proprietor, a patent cannot be maintained against the proprietor's will.
If a patent proprietor withdraws its approval of the text of the patent as granted and of the text in which the patent was maintained and withdraws every other request on file, and requests revocation of the patent in suit it wishes to prevent any text whatever of the patent from being maintained.
4. In the case of T 73/84 cited by the respondent (OJ EPO 1985, 241, Headnote and Reasons), the board decided that, if the proprietor of a European patent stated in opposition or appeal proceedings that it no longer approved the text in which the patent was granted, and did not submit any amended text, the patent was to be revoked. This approach was confirmed, among others, by decisions T 186/84 (OJ EPO 1986, 79), T 1526/06 (not published in OJ EPO), T 2405/12 (not published in OJ EPO) and other more recent decisions (see Case Law of the Boards of Appeal, IV.D.2, third paragraph).
5. The patent must therefore be revoked without going into any substantive issue.
Order
For these reasons it is decided that:
The decision under appeal is set aside.
The patent is revoked.
