T 0742/24 - Disapproval of the text in opposition

Key points

• "In a first communication pursuant to Article 15(1) RPBA, the board provided the preliminary view that none of the respondent's claim requests were allowable, and that the patent was to be revoked. 
• "With letter dated 3 December 2025, the appellant [opponent] requested, in the event that the respondent should withdraw its consent to the text of the patent, that - the board nevertheless issue a fully reasoned decision, - as an auxiliary measure, the board dismiss the request (i.e. the withdrawal of approval of the text) as inadmissible due to an abuse of proceedings, "
• "With letter dated 12 December 2025, the respondent stated the following: "We hereby withdraw the proprietor's approval of the text of European Patent No.  ..."
• "Oral proceedings by videoconference took place as scheduled on 15 January 2026 in the presence of the appellant [opponent] and in the absence of the respondent [patentee]."
• " During oral proceedings, the [opponent]  withdrew the request submitted with letter dated 3 December 2025 that the board dismiss the [proprietor's] withdrawal of the approval of the text of the patent as inadmissible due to an abuse of proceedings. "
• This is a pity. 
• The Board confirms T 73/84: "The board does not agree that the decisions establishing the principle that a withdrawal of approval of the text leads to the revocation of the patent did not include proper reasoning. In particular, in the case underlying T 73/84, the deciding board explained that, since under Article 113(2) EPC the EPO must consider the European patent only in the text submitted to it, or agreed by, the proprietor of the patent, the withdrawal of approval left no text on which the appeal could be considered, the only remaining possibility being revocation of the patent "
• " It follows that "submitted" in Article 113(2) EPC does not refer merely to a historical act of filing, but to a continuing expression of agreement. A text is "submitted to" the EPO within the meaning of that provision only as long as the proprietor maintains agreement to it. Under Article 113(2) EPC, the EPO cannot decide upon a text withdrawn, or no longer agreed to, by the patent proprietor, irrespective of whether the text remains on file. Once the proprietor has stated that it no longer agrees to the text, that text no longer satisfies the condition set by Article 113(2) EPC. "
• I count 8 divisionals in the file.
• For completeness' sake, and as a comment: note that the disapproval of the text of a patent is not guaranteed to be completely risk-free. The interested reader is referred to pending case T-19/25 before the EU General Court (Copaxone). (link)
• 
  

EPO 

Th

https://www.epo.org/en/boards-of-appeal/decisions/t240742eu1