Withdrawal of appeal 

In G 1/94 (see point 3.1.4 b) above), the Enlarged Board also examined the question of whether an intervener during appeal proceedings could raise any of the grounds for opposition under Art. 100 EPC 1973 even if they had not yet been examined by the opposition division, and found in the affirmative. If a fresh ground for opposition was raised, the case should be remitted to the department of first instance unless the patent proprietor wished the board to rule on it there and then. In T 694/01 (OJ 2003, 250), it was made clear that where a board has decided to maintain a patent on the basis of a given set of claims and a description to be added to them, in subsequent appeal proceedings confined to the issue of the adaptation of the description the previous decision is res judicata and the intervener cannot therefore challenge this decision by introducing a new ground of opposition.

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