2.4. Withdrawal of opposition or appeal at short notice

An appellant is entitled to withdraw his appeal at any time. Based on the principle of free party disposition, this right may not be restricted, even implicitly by the threat of cost apportionment, on the grounds that oral proceedings have been scheduled and the opposing party cannot be notified in time. As a rule, the benefits that respondents derive from the withdrawal of the appeal will offset the costs that they incur, even if they are avoidable. That is the case even if the appeal is only formally pending on account of the request for cost apportionment (T 490/05).

In T 85/84 the appellants withdrew the appeal in a telex to the EPO and the respondents' representative 48 hours before the date of the oral proceedings. By the time the respondents' representative found out, he had already departed in order to prepare for the oral proceedings in Munich. The board conceded that the appeal had been withdrawn at extremely short notice but did not order apportionment of the costs, as the respondents' representative had still been informed in due time that the oral proceedings would not be taking place. Internal delays in forwarding the communication were not the fault of the appellants. The representative's departure for Munich a day before the oral proceedings was not warranted by the distance and therefore not necessary from the point of view of the oral proceedings.

In T 614/89 and T 772/95, in which the appeals were withdrawn respectively four and three days before the date set for oral proceedings, the boards ruled that the short notice alone did not constitute an abuse of procedure.

The same conclusion was reached in T 674/03, where the opponent withdrew its appeal nine days before the date set for the oral proceedings. The board held that the exercise of an absolute procedural right did not, in principle, constitute abuse and that there was no evidence of improper or negligent conduct (see also T 626/15).

In T 1663/13 the opponent waited until the last working day before the oral proceedings scheduled to withdraw both its request for oral proceedings and its appeal. The board cancelled the oral proceedings. The board agreed with the principles set out in T 490/05. However, it held that the case was not simply about withdrawing an appeal on the last working day before scheduled oral proceedings. Rather, the board noted the special circumstances of the case, inter alia, that the opponent did not follow the board's direction to declare whether it maintained its request for oral proceedings in view of the board's negative opinion on the admissibility of the appeal, but instead twice requested an extension of time limit without filing any substantive reply. The board decided to apportion costs and fix the amount both for preparing the oral proceedings and for travel.