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Case Law of the Boards of Appeal

3.8.1 General issues

A valid notice of withdrawal which has been received at the EPO is binding on the applicant, although, in the case of withdrawal by mistake, R. 139 EPC (R. 88 EPC 1973) may be applicable (see e.g. J 10/87, OJ 1989, 323, and J 4/97).

A request for withdrawal of a European application should only be accepted without question if it is completely unqualified and unambiguous (J 11/80, OJ 1981, 141). In J 11/87 (OJ 1988, 367) the board added that where there was even the slightest doubt as to the proprietor's actual intent such a declaration should be construed as a declaration of withdrawal only if the subsequent facts confirmed that such had been his true intent.

In J 15/86 (OJ 1988, 417) the board stated that there was a recognised difference between passive abandonment and active withdrawal of a European patent application. Each case in which there was a dispute as to the applicant's intention had to be considered on its own facts. A written statement by the applicant or his representative had to be interpreted in the context of the document as a whole and the surrounding circumstances. Similarly, J 7/87 (OJ 1988, 422) ruled that the language used had to be interpreted in the light of the surrounding circumstances, from which it had to be clear that the applicant really wanted immediate and unconditional withdrawal rather than passive abandonment leading in the course of time to deemed withdrawal. Actual withdrawal did not depend on whether the applicant had used the term "withdrawal".

In J 6/86 (OJ 1988, 124) the board considered the statement "the applicant wishes to abandon this application" as an unambiguous withdrawal of a European patent application, since nothing in the circumstances under which the statement had been made could be taken as qualifying such an interpretation. It is too late to ask for retraction of a notice of withdrawal once the withdrawal has been notified to the public in the European Patent Bulletin (see J 15/86, OJ 1988, 417). In this case it was alleged that the withdrawal had been made by mistake.