Summary of Facts and Submissions
I. In a decision dated 17 January 1984 the Opposition Division rejected the opposition which had been filed against European patent No. 0 016 966 granted upon the subject-matter of European patent application No. 80 100 974.7, and maintained the patent unamended.
II. The opponent appealed against this decision on 10 March 1984, paid the fee for appeal on 12 March 1984 and at the same time filed a written statement setting out the grounds of appeal.
III. In a letter dated 10 August 1984 the patent proprietor referred to Legal Advice No. 11/82 from the European Patent Office (OJ (EPO) 2/1982, p. 57) and stated that, in order to terminate the appeal proceedings, he no longer approved the text in which the patent was granted and would not be submitting an amended text.
Reasons for the Decision
1. The appeal complies with Articles 106 to 108 and Rule 64 EPC and is therefore admissible.
2. The Board cannot decide whether the appeal is wholly or partially justified. The patent proprietor withdrew his approval of the text of the patent as granted during the appeal proceedings and at the same time stated that he would not be submitting an amended text. There is therefore no text of the patent on the basis of which the Board can consider the appeal: under Article 113(2) EPC the European Patent Office must consider the European patent only in the text submitted to it, or agreed by, the proprietor of the patent.
3. 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 the patent proprietor withdraws his approval, expressed before the first instance, of the text of the patent as granted and declares that he will not be submitting an amended text, it may be inferred that he wishes to prevent any text whatever of the patent from being maintained.
4. However, the patent proprietor cannot terminate the proceedings by telling the EPO that he is surrendering the European Patent, since this is not provided for in the Convention. Thus he would only be able, as far as national law permitted, to surrender the patent vis-à-vis the national patent offices of the designated Contracting States under the relevant national law.
5. At the same time, the proceedings ought to be terminated as quickly as possible in the interests of legal certainty, which calls for a clarification of the industrial rights situation. The only possibility in such a case is to revoke the patent, as envisaged for other reasons in Article 102 EPC. The practice followed by the Opposition Divisions is thus confirmed.
ORDER
For these reasons, it is decided that:
The contested decision is set aside and the patent revoked.
