- In this decision, the order of the Board is that "The patent is maintained unamended" .
- However, article 101(2) EPC, second sentence, says that the OD "shall reject the opposition" . Article 101(3) EPC speaks only of "decide to maintain the patent as amended" . Article 111(1) EPC gives the Board "any power within the competence of the [first instance department]" , not more.
- In my view, " maintaining a patent unamended" is an informal way of referring to "rejecting the opposition" under Article 101(2) EPC.
- However, it appears to be the new standard phrase (see e.g. also T 2215/14; T2456/12).
- So, requesting that the patent is "maintained unamended" is is not sloppy. (edit 14.10.2018).
- Edit 14.10.2018: a kind reader has pointed out that the Board use the phrase already for a long time, e.g. in T 323/03 and T97/96 and, as "the European patent is maintained as granted", in T 857/00.
EPO T 1207/15 - link
Order
For these reasons it is decided that:
1. The decision under appeal is set aside.
2. The patent is maintained unamended.
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