| European Case Law Identifier: | ECLI:EP:BA:2024:T188021.20240423 | ||||||||
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| Date of decision: | 23 April 2024 | ||||||||
| Case number: | T 1880/21 | ||||||||
| Application number: | 15177659.8 | ||||||||
| IPC class: | H04R 25/00 | ||||||||
| Language of proceedings: | EN | ||||||||
| Distribution: | D | ||||||||
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| Title of application: | An in-the-ear hearing aid having combined antennas | ||||||||
| Applicant name: | GN Hearing A/S | ||||||||
| Opponent name: | Oticon A/S | ||||||||
| Board: | 3.5.03 | ||||||||
| Headnote: | - | ||||||||
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| Keywords: | Revocation of the patent - (yes): no approved claims on file Decision in written proceedings - (yes): oral proceedings obsolete |
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| Catchwords: |
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Summary of Facts and Submissions
I. The appeals lie from the interlocutory decision of the opposition division to maintain the opposed patent in amended form in accordance with the proprietor's
"1st auxiliary request" (Article 101(3)(a) EPC).
II. The parties made the following requests:
- The appellant-proprietor requested that the decision under appeal be set aside and, as its main request, that the opposition be rejected, i.e. that the patent be maintained as granted. In the alternative, the proprietor requested that the opponent's appeal be dismissed, i.e. that the patent be maintained in amended form based on the set of claims found allowable by the opposition division. In the further alternative, the proprietor requested that the patent be maintained in amended form based on the set of claims according to one of seven auxiliary requests (first to seventh auxiliary requests). These seven auxiliary requests were filed with the written reply to the opponent's appeal.
- The appellant-opponent requested that the decision under appeal be set aside and that the patent be revoked.
III. The parties were summoned to oral proceedings before the board. A communication was issued under Article 15(1) RPBA including the board's preliminary opinion.
IV. In response to the board's communication, the appellant-proprietor stated that it no longer approved the text in which the patent was granted and would not submit an amended text. In addition, it withdrew its request for oral proceedings.
V. The board then cancelled the arranged oral proceedings.
Reasons for the Decision
1. Under Article 113(2) EPC, the EPO shall consider and decide upon the patent only in the text submitted to it, or agreed by, the proprietor of the patent. If the patent proprietor states in opposition or appeal proceedings that they no longer approve the text in which the patent was granted and will not be submitting an amended text, there is no text of the patent on the basis of which the board can consider the appeal. It is generally accepted that the patent is to be revoked in such a case (cf. T 73/84, Reasons 2; T 2405/12, Reasons 2 to 4).
2. The statement indicated in point IV above must be understood as a disapproval not only of the text as granted, but also of the text found allowable by the opposition division as well as the texts according to the first to seventh auxiliary requests already on file. Hence, the patent is to be revoked.
3. In view of the above, the board does not consider holding oral proceedings to be expedient in this case, and the condition for the appellant-opponent's request for oral proceedings does not apply. Thus, the board cancelled the oral proceedings.
Order
For these reasons it is decided that:
1. The decision under appeal is set aside.
2. The patent is revoked.
