3.1.6 Revocation of patent

The principles of G 9/92 date: 1994-07-14 (OJ 1994, 875) were applied in T 169/93 to the situation where the patent had been revoked, not amended. The patentee appealed against the decision to revoke (for lack of inventive step). The opposition division had found the patent sufficiently disclosed and novel. The appellant submitted that these issues could not be reopened, as none of the opponents had appealed this finding, relying on decisions G 9/91 (OJ 1993, 408), G 10/91 (OJ 1993, 420) and G 9/92 date: 1994-07-14. The board disagreed, pointing out that the respondents were unable to file an appeal, not being adversely affected under Art. 107 EPC 1973, their request for revocation having been granted. Moreover, as the patent had been revoked, it was not possible for the appellant to have an even worse outcome. It was thus open to the respondents to re-argue matters which had already been at issue before the opposition division. See also T 1341/04, where the board further noted that the situation arising from a decision to revoke a patent was legally different from the one in which the patent had been maintained by the opposition division in amended form, where the decision could be appealed by both patentee and opponent. It was this situation which led to the conclusion in G 9/92 date: 1994-07-14 and G 4/93 that the patent proprietor is primarily restricted during the appeal proceedings to defending the patent in the form in which it was maintained by the opposition division, in a case where the opponent is the sole appellant.