| European Case Law Identifier: | ECLI:EP:BA:2023:T018020.20230418 | ||||||||
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| Date of decision: | 18 April 2023 | ||||||||
| Case number: | T 0180/20 | ||||||||
| Application number: | 10774623.2 | ||||||||
| IPC class: | A61M 16/06 A61M 16/08 |
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| Language of proceedings: | EN | ||||||||
| Distribution: | D | ||||||||
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| Title of application: | PATIENT INTERFACE AND ASPECTS THEREOF | ||||||||
| Applicant name: | Fisher & Paykel Healthcare Limited | ||||||||
| Opponent name: | ResMed Pty Ltd. | ||||||||
| Board: | 3.2.02 | ||||||||
| Headnote: | - | ||||||||
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| Keywords: | Basis of decision - text or agreement to text withdrawn by patent proprietor Basis of decision - patent revoked |
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| Catchwords: |
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Summary of Facts and Submissions
I. The opponent appealed against the Opposition Division's decision that, account being taken of the amendments made by the patent proprietor during the opposition proceedings according to auxiliary request 5, the European patent and the invention to which it relates met the requirements of the EPC.
II. Oral proceedings before the Board took place on 18 April 2023.
The appellant requested that the decision under appeal be set aside and that the patent be revoked.
The respondent withdrew its consent to the text of the patent in any form.
Reasons for the Decision
1. Under Article 113(2) EPC, the European Patent Office must examine, and decide upon, the European patent only in the text submitted to it, or agreed, by the proprietor of the patent.
2. Since the respondent withdrew its agreement to the text of the patent in any form, there is no text of the patent on which the Board can base its consideration of the appeal.
3. As held in T 73/84 (Headnote and Reasons) and confirmed in numerous subsequent decisions (Case Law of the Boards of Appeal, 10th edition 2022, III.B.3.3, first paragraph and IV.D.2, third paragraph), if the proprietor of a European patent states in opposition or appeal proceedings that it no longer approves the text in which the patent was granted, and does not submit any amended text, the patent is to be revoked.
Order
For these reasons it is decided that:
1. The decision under appeal is set aside.
2. The patent is revoked.
