1.

Under Article 113(2) EPC, the European Patent Office may only concern itself with the text as submitted or agreed by the applicant or proprietor (requirement of approval). This principle applies not only to the application, but also to the granted patent (Article 113(2) EPC) and therefore has to be strictly observed in opposition proceedings as well (cf. Guidelines D-VI, 2). It is only possible for a European patent to be maintained as amended, if the Opposition Division takes its decision on an amended text submitted by the proprietor (Article 102(3) EPC). This requirement that the Opposition Division confine itself to the proprietor's submissions also means, however, that it may not maintain the patent unamended if the proprietor withholds his approval from that text. Otherwise it would be acting in breach of its obligation to adhere to the amendments made by the applicant.

2.

Regardless of whether the proprietor withdraws his agreement to the text of the patent as granted either completely or in part - by submitting a restricted text - the same principle still applies: if he states that he no longer approves the text in which the patent was granted, this constitutes an amendment to be taken into account under Article 102(3) EPC. If the proprietor does not submit a new text of the claims, a major prerequisite for maintaining the patent as amended will not be fulfilled, i.e. a text of the patent submitted or agreed by the proprietor (Article 113(2) EPC). It is no longer necessary to examine whether the grounds for opposition (Article 100 EPC) prejudice the maintenance of the patent unamended (Article 102(1) and (2) EPC). The patent must be revoked.

3.

If the proprietor of the patent requests that the European patent should be revoked this implies that he no longer approves the text in which the patent was granted. He may still make such a request within the period laid down in Rule 58(4) EPC. In this case also, there is no text submitted or agreed by the proprietor (Article 113(2) EPC) in which the European patent may be maintained. The patent must be revoked.

4.

Revocation of a patent for reasons other than those specified in Article 100 EPC is not without precedent in the EPC itself. The patent is revoked if the fee for the printing of a new specification is not paid in due time or if the translation of the amended claims is not filed in due time (Article 102(4) and (5) EPC). In the same way, the absence of a text proposed or agreed by the proprietor results in revocation of the patent.

5.

Consideration of the general interest lends support to the foregoing interpretation of the Convention. The EPC provides for the possibility of the revocation of an invalid patent in the public interest where an opposition is withdrawn (continuation of the opposition proceedings by the European Patent Office of its own motion - Rule 60(2) EPC). Clearly, to maintain a European patent against the express wish of the proprietor would run counter to the interests, not just of the parties to the proceedings, but of the public at large, which would find itself burdened with a patent which has become superfluous.

6.

The revocation of the European patent always means, without exception, that the European patent application and the resulting patent is deemed not to have had, as from the outset, the effects specified in Articles 64 and 67 irrespective of the grounds for the revocation (Article 68 EPC). The decision has retroactive effect even when the revocation is based on grounds other than those specified in Article 100 EPC.