On appeal, the first instance loses its competence for the further prosecution of the application for all contracting states - the appeal does not leave a part of the application pending in the first instance. Thus, deemed withdrawal of the application pursuant to Art. 110(3) EPC 1973
applied in the case of a failure to reply to a communication pursuant to Art. 110(2) EPC 1973
in ex parte appeal proceedings, even where the decision under appeal did not refuse the application, but only a particular request. The board reasoned that even if the appealed decision concerned only the designation of a state and not the application as a whole, according to the principle of unity of the application and of the patent in the proceedings the suspensive effect of the appeal affected the application as a whole. Since it was bound by the Convention, a deviation from the clear wording of a provision of the Convention could only be considered if the provision was in breach of a higher legal principle or was purely arbitrary. The board decided it was not, as the validity of a designation was part of the grant procedure - the decision to grant had to identify the states for which the patent was granted (J 29/94
, OJ 1998, 147).