Summary of Facts and Submissions
I. The Opposition Division of the European Patent Office rejected the opposition against European patent No. 006 549, granted on the basis of European patent application No. 79 101 960.7, by Decision dated 13 June 1984.
II. The opponents appealed against the decision on 12 July 1984 and paid the fee. The Statement of Grounds was filed on 13 October 1984.
III. The opponents request that the European patent be revoked. By letter dated 5 June 1985 the proprietors of the patent now likewise request revocation.
Reasons for the Decision
1. The appeal complies with Articles 106 to 108 and Rule 64 EPC and is therefore admissible.
2. Since the proprietors of the patent have themselves requested that their patent be revoked, the first question to be answered is whether such a request is admissible. In the course of opposition proceedings before the EPO the need arose for the proprietors to have their patent set aside with retroactive effect. The European Patent Office accordingly sought a legal means whereby the proprietors could be divested retroactively of their European patent in opposition proceedings and adopted that set out in Legal Advice No. 11/82 (OJ EPO 2/1982, p. 57), whereby a European patent is revoked, without any further examination as to patentability, if the proprietor states that he no longer approves the text in which the patent was granted and does not submit an amended text. This was assumed also to apply if the proprietor requested that the patent be revoked.
3. This solution cannot be reproached on legal grounds and is in line with the requirement of Article 113(2) EPC that the EPO confine its considerations to the text of the European patent "submitted to it, or agreed" by the proprietor. Agreement cannot be held to have been given if the proprietor of the patent, without submitting an amended text, expressly states that he no longer approves the text in which the patent was granted (cf. T 73/84 "Revocation at the instigation of the patent proprietor/SMS" - OJ EPO 8/1985, p. 241). It follows from this that the patent cannot be maintained against the will of the proprietor and that he may also bring about revocation - the inevitable consequence of such a statement - by a direct request.
4. In the present case the proprietors have applied for the patent to be revoked. It is beyond doubt that in so doing they are seeking revocation within the meaning of Article 102(1) and with the consequences specified in Article 68 EPC, namely the cancelling of the effects of the European patent application and the resulting patent as from the outset. Although the request for revocation differs as to form, it is in substancee the same as stating disapproval of a given text of the claims, since it has the same aim; the present request may therefore be regarded as a withdrawal of agreement to the text of the patent as granted.
5. If the patent proprietor himself requests that the patent be revoked, the examination as to whether the grounds for opposition laid down in Article 100 EPC prejudice the maintenance of the patent as referred to in Article 102 becomes not merely superfluous but impossible since the absence of a valid text of the patent (cf. 3 above) precludes any substantive examination of the alleged impediments to patentability.
ORDER
For these reasons, it is decided that:
1. The contested decision is set aside.
2. European patent No. 006 549 is revoked.
