8.1. Revocation of a European patent for failure to fulfil formal requirements – by way of decision

It had been held in T 26/88 (OJ 1991, 30) that the revocation of the patent for failure to fulfil the formal requirements of paying the printing fee and filing the translations of the amended claims (Art. 102(4) and (5) EPC 1973; R. 82(3), second sentence, EPC) had occurred by operation of law ("automatically").

However, according to G 1/90 (OJ 1991, 275), the revocation of a patent under Art. 102(4) and (5) EPC 1973 required a decision. The Enlarged Board compared the ways of terminating proceedings provided for at various stages under the EPC and concluded that the wording of the regulations clearly indicated in each case whether a decision or a communication had to be issued concerning the loss of rights under R. 69(1) EPC 1973 (R. 112(1) EPC)). It also considered the issue of legal certainty and, in the light of the "travaux préparatoires", discussed the question of when a loss of rights noted in accordance with that provision became non-appealable. It found that the procedure of pronouncing revocation by way of a decision led neither to legal uncertainty nor to misunderstandings. See also T 1403/16 for a more recent decision emphasising (in the context of the applicability of Art. 122 EPC), for all three possibilities pursuant to Art. 101 EPC to terminate opposition proceedings (revocation of the patent, rejection of the opposition and maintenance of the patent as amended), that the opposition division had to deliver a decision within the meaning of Art. 106(1) EPC. This also applied to R. 84(1) EPC.