5.3. Proprietor's approval of amended text of the patent

In T 1467/16 the board recalled that the text of the patent was at the disposition of the patent proprietor (Art. 113(2) EPC) and hence a patent could not be maintained against the patent proprietor's will. Since revocation under Art. 105a(1) EPC at the request of the patent proprietor was not possible in the framework of opposition or opposition appeal proceedings (Art. 105a(2) EPC), the board, in line with previous case law, revoked the patent under Art. 101 EPC.

In T 861/16, the board held that since the principle of tacit acceptance ("qui tacet consentire videtur") was not established in the EPC, it was not enough for an opposition division merely to ask the patent proprietor whether it wished to comment on amendments to the description which had been prepared by the division. It had to ensure that the patent proprietor approved them.

On the need for a text submitted or agreed by the proprietor, see also chapter III.B.3.