3.1. Form and effect of withdrawal on party status

A withdrawal requires an unambiguous statement. An opponent's statement explaining his lack of interest in the fate of the European patent to which his opposition relates cannot be construed as a withdrawal of the opposition (T 798/93, OJ 1997, 363). A declaration by the opponent that he has decided to "discontinue the opposition" clearly indicates that he wants to cease his opposition and is to be interpreted in the sense that the opposition has been withdrawn (T 789/89, OJ 1994, 482).

An opponent who withdraws his opposition ceases to be a party to the proceedings (T 283/02). Where the proceedings continue and there are questions concerning the apportionment of costs, the opponent ceases to be a party with respect to the substantive issues, but remains a party as regards apportionment of costs (T 789/89, see also the more recent decisions T 1397/10, T 2350/10 and T 2061/11).

It is not possible to request that a withdrawal of an opposition be cancelled. The withdrawal is a procedural declaration by a party which takes effect on receipt by the EPO. An opponent who withdraws his opposition and as a result ceases to be an active party to the proceedings can no longer take procedural steps himself (T 283/02).

In T 558/95 the board noted that the main request had been refused by the opposition division before the opposition was withdrawn. The decision concerning this request was thus final; even after the withdrawal of the opposition, it could no longer be reviewed by the department of first instance. The continuation of the proceedings by the EPO of its own motion under R. 60(2), second sentence EPC 1973 (R. 84(2) EPC) therefore applied only to the auxiliary request, which had not been the subject of a final decision.