7.3. Withdrawal of the appeal
7.3.7 Correction of withdrawal of appeal under Rule 139 EPC
In T 610/11 the board came to the conclusion that the declaration submitted by the appellant's representative to withdraw the appeal could not be considered to contain an error to be corrected under R. 139 EPC. The board stated that the representative did not make any error when declaring the withdrawal of the appeal. Rather, the appellant gave instructions to the representative, which, as it turned out later, did not represent its true intention. In other words, an error occurred during the process of deciding how the appellant should deal with the application. The board referred to the jurisprudence of the boards of appeal according to which, as a general rule, an applicant is bound by its procedural acts notified to the EPO, provided that the procedural statement was unambiguous and unconditional (cf. J 11/87, OJ 1988, 367; J 27/94, OJ 1995, 831), and is not allowed to reverse these acts so that they can be considered as never filed (J 10/87, OJ 1989, 323; J 4/97). The board concluded that in cases where a professional representative acts on behalf of an appellant, an error or mistake in a procedural declaration before the boards of appeal can be corrected under R. 139 EPC only if this error or mistake has been made by the representative himself (see also J 19/03).
- T 433/21
Catchword:
1. Neither the omission of a procedural act nor an error caused by miscommunication between the applicant and the representative or by an incorrect recollection of the applicant's instructions can be regarded as an error under Rule 139 EPC, provided that the document filed with the EPO is deemed to express the representative's intention at the time of filing. 2. A request for correction of a declaration of withdrawal of an appeal under Rule 139 EPC does not reopen the appeal proceedings, but only starts ancillary proceedings to decide whether the appeal proceedings should be reopened.
- T 695/18
Catchword:
1. "Proceedings" to be re-opened under Article 112a(5) EPC following an allowable petition are limited to rectifying the defect found according to the review decision. The present proceedings as re-opened by the Enlarged Board in R 3/22 are thus not the appeal proceedings, but "ancillary proceedings" with the limited purpose to decide on the request for correction of the withdrawal of the appeal (see point 2 of the Reasons). 2. Rule 139 EPC is applicable only if proceedings before the EPO for some other purpose are pending when the request for correction is received by the EPO. The request for correction is inadmissible if received when no such proceedings are pending (see point 3 of the Reasons). 3. A patent application subject to the examining division's refusal, which is in turn subject to an appeal that has been withdrawn, is not "pending" within the meaning of Rule 36(1) EPC (see point 4 of the Reasons).
- 2023 compilation “Abstracts of decisions”