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.
Remarks:
O.J. EPO issue: 1985,241
Case law reports: CLBA 1996
